Look-alikes and advertising – (Polnareff affair)

Michel Polnareff would like to cut the music. He is claiming 1 ,1 million euros from the company BNP Paribas Personal Finance as well as the communication agency TBWA Paris, for having damaged his image by using his look-alike in several advertisements broadcast since 2011 for the brand Cetelem, which would cause him property and moral damage. In addition to the loss of advertising revenue, Michel Polnareff complained about the ridiculous character played by his lookalike.

The debate about the existence and exploitation of a look-alike in advertising is not new. The French texts grant a rather broad protection to personalities whose features (image or voice) are used for advertising purposes.

Article 9 of the Civil Code enshrines the right to one’s image and voice as attributes of the personality. On the basis of this text, a person whose look-alike has been used in conditions prejudicial to his or her image will thus be able to claim compensation for moral prejudice.

It is also possible, on the basis of article 1240 of the Civil Code,  to obtain compensation for material damage resulting from the use of one’s image and/or voice without financial consideration, provided that it can be shown that there is a real loss of profit.

In order for the request to be granted by the judges, there must be a risk of confusion with the person, i.e. the person must be identifiable by the image and/or the sound.

Any use of a look-alike would, in principle, infringe on the image and/or voice rights of the person, the latter being entitled to claim compensation for the damage suffered on the basis of article 9 and/or article 1240 of the Civil Code.

However, there are many exceptions where the use of a look-alike is a priori legal:

(i) if it is justified by the historical or current context in which the work is set;

(ii) if it is not defamatory in nature or;

(iii) if it has a parody or caricature character.

As soon as there is an advertising use of the look-alike, the traditional exceptions related to topicality or parody would no longer be justified.

Thus, judges have sanctioned the use of a television commercial based on a text read by a person whose ” diction, flow, tone and voice inflections (…) evoked the verbal characteristics of the actor Claude Piéplu ” (TGI Paris, 3 December 1975).

Similarly, in a case involving Belmondo, Hallyday and Vartan to the company Eminence, the judges considered that “this kind of imitation has nothing of a pastiche tolerated by the uses, not being an end in itself, but a means used for advertising and commercial purposes to attract the attention of the public not on the artist but on a product, and this without having obtained the special agreement of the interested party “ (TGI Paris, 3rd room, 24 Feb. 1976).

Gérard Depardieu had also obtained compensation for damage to his image due to the use of his look-alike in an advertisement.

 In this case, two advertising films were made to promote chocolate and featured an English actor who looked ” “ like Gérard Depardieu.

The Tribunal de Grande Instance then ruled that : “Even admitting that the search for a look-alike was not the goal initially pursued by this defendant, it is clear that the astonishing physical resemblance of the English actor with the French star could not escape him; (…), that this imitation reveals a marked will to accentuate the resemblance of this character with this artist, who was obviously taken here as a reference model. “ (TGI Paris, 1st chamber, 1st section, October 17, 1984).

In 2007, Jean-Luc Delarue had successfully complained about a video featuring a drunken lookalike of him on a plane, ending with a promotional message “If it were true, it would be in Shock”. The interim relief judge then considered that ” (…) if a news item can legitimately be reproduced in conditions that are not contrary to dignity, it cannot however be diverted to manifestly and exclusively commercial ends, whatever the humorous tone of the process, even if it means using a look-alike who, in this case, maintains the confusion (…) “.

Jean-Luc Delarue  had obtained compensation on the basis of his right ” exclusive and absolute on his image, attribute of his personality authorizing him to oppose its use “ (TGI Nanterre, summary order, 23 March 2007).

In another case, the actor Jean Paul Rouve sued the company Crédit Lyonnais because of the broadcasting of an advertising campaign in which appeared a look-alike with the characteristics of the character played by the actor in the film Monsieur Batignole.

The Court of First Instance had then considered that no infringement of his image rights was characterized since it is not the person of Jean Paul Rouve ” which is reproduced in the advertising film in question “ but that of a character.

The Judges also noted ” that no other resemblance than the one naturally existing between the two actors makes it possible to consider that the authors of this film would have sought a resemblance with the plaintiff (…) “ (Paris Court of First Instance, 17th press room – civil, February 27, 2013, No. 10/16148).

Regarding the Polnareff case, on June 22, 2016, the Court ordered BNP Paribas and TBWA Paris jointly and severally to pay compensation for non-material damages resulting from the undue exploitation of the singer’s image in advertising films.

The Judges indeed considered that ” the public could legitimately be misled into thinking that its personality was used with its consent for this advertisement in favor of the credit organization Cetelem “ (TGI Paris, 17th press-civil chamber, June 22, 2016, n°15/05541).

However, they will not have granted the astronomical sum requested by Michel Polnareff since the moral damage was set at 10 000 euros.

The Judges have indeed taken into account the lateness of the action taken by Michel Polnareff in 2015, while the films were broadcast since 2011, and that it cannot be considered that the ridiculousness of the look-alike character, even if it would be effectively characterized, would be reflected ” (…) on Michel Polnareff, as soon as this character is different from the singer. “

On the other hand, the judges did not find that there had been an injury to dignity and therefore dismissed the plaintiff’s claim for compensation for material damage.

Thus, only the infringement of the right to image was recognized by the Courts by admitting that the public could be legitimately misled and think that the look-alike was exploited with the agreement of the personality.