In this blog, I examine the ambit of protection given to personality rights in Canadian law. I focus, in particular, on the common law tort of appropriation of personality. The tort was first articulated by the Ontario Court of Appeal in Krouse v. Chrysler Canada Ltd., (1973), 1 O.R. (2d) 225 (Ont. C.A.) It allows an individual to control the commercial use of his or her name, image, likeness, voice, reputation or other unequivocal aspects of his or her identity. The tort seems to be quite amorphous. However, case law suggests that the plaintiff must prove at least two elements:
(1) the exploitation of the plaintiff’s identity was for a commercial purpose and
(2) the exploitation clearly and primarily captured the plaintiff.
(1) The exploitation of the plaintiff’s identity must be for a commercial purpose
To evaluate whether exploitation is for a commercial purpose, the trial judge in Gould Estate v. Stoddart Publishing Co, (1996), 30 O.R. (3d) 520 (Ont. Gen. Div.), adopted the ‘sales v. subject’ distinction as outlined by U.S. courts. In particular, if the defendant has used the plaintiff’s likeness or name ‘predominantly in connection with the sale of consumer merchandise or solely for the purpose of trade’ then the tort would be established. For example, a board game using the names of famous golfers to increase the sales of the board game would most likely infringe on the golfers’ personality rights.
On the other hand, if the plaintiff were the subject of the defendant’s work or enterprise the defendants’ actions would most likely not infringe the plaintiff’s personality rights. This is because the court would regard the defendant’s work as one that is in the public interest. For example, the subject of a biography is the plaintiff himself. Thus the work’s purpose is not to augment the sales of a product by associating that product with the plaintiff but to provide some insights about the plaintiff’s life.
The case of Gould Estate v. Stoddart Publishing Co concerned a famous pianist who was interviewed by Jock Carroll for an article in Weekend Magazine. Nearly forty years later (in 1995), Carroll published through Stoddart Publishing Co. a book called ‘Glenn Gould: Some Portraits of the Artist as a Young Man’, which included some of the photographs and conversations that Carroll recorded during the interview with Gould. Gould had died in 1982 and Gould Estate did not authorize the publication or receive royalties from the book. As a result, Gould Estate sued Stoddart Publishing Co. on three grounds, one of which was the tort of appropriation of personality.
Applying the ‘sales v. subject’ distinction, the trial judge concluded that there is a public interest in knowing more about Canada’s musical geniuses. In particular, the book was about Gould; it provided insights to anyone interested in the famous pianist and as such was in the public interest. Since the first element of the tort was not established, the defendant was not liable.
(2) The exploitation must clearly and primarily capture the plaintiff
The second element of the tort of appropriation of personality, which did not arise in Gould Estate v. Stoddart Publishing Co, was clearly articulated in Joseph v. Daniels and Krouse v. Chrysler Canada Ltd.
In Joseph v. Daniels the plaintiff, an amateur bodybuilder, sued the defendant, a photographer, for appropriation of personality arising from the unauthorized use of a plaintiff’s photograph. The photograph in question showed the plaintiff from neck to waist holding a kitten. The court held that the tort of appropriation of personality did not apply. The viewer of the photograph would not have been able to identify the plaintiff since the photograph only depicted the plaintiff’s torso.
In Krouse v. Chrysler Canada Ltd., the plaintiff was a famous football player. Chrysler Canada distributed a promotional item that depicted the plaintiff in his Hamilton Tiger Cat Football Club uniform bearing the number ‘14’. As a result, Krouse sued Chrysler Canada for appropriation of personality. The Ontario Court of Appeal held that the defendant was not liable because the use of the plaintiff’s image was incidental and not the primary object of the photograph. The defendant had sought to gain trade advantage by associating his product with the popular game of football and not with any particular team or participant.
It is interesting to note that in Athans v. Canadian Adventure Camps Ltd. et al, (1977), 17 O.R. (2d) 425 (Ont. H.C.)., that despite the unclear depiction of the plaintiff on defendant’s promotional material, the tort was made out. In particular, the plaintiff Athans was a famous water skier. The defendant, a student camp, promoted its business by using a stylized photograph of Athans. Previously, Athans had frequently used the photograph to market his image. As a result, Athans sued for appropriation of personality. The court concluded that the tort, in its usual form, was not made out because the ordinary parent who sent his kids to the camp would not have recognized Athans on the stylized picture. Yet Athans was awarded damages.
It seems that the court in Athans relied on equity to carve out a narrow exception where clear depiction is not necessary. This exception seems to apply in cases (such as Athans) where the plaintiff has already marketed and charged for the use of his image and the use by the defendant of that image would cause a commercial loss to the plaintiff. In particular, the court noted that the defendant could have chosen among thousands of pictures that depicted a water skier. Yet the defendant chose to modify the one photograph that Athans had previously used to promote himself. The court also recognized that although the public would not think that Athans appeared on the camp’s promotional brochure, Athans had lost the opportunity to control the exclusive use of his promotional photograph and to charge for the commercial use of that photograph.
Thus the court concluded that ‘the commercial use of his [Athans] representational image by the defendants without his consent constituted an invasion and pro tanto an impairment of his exclusive right to market his personality and this…constitutes an aspect of the tort of appropriation of personality’.
Do personality rights survive the death of celebrities?
While courts are in agreement that personality rights survive the death of celebrities, it is unclear for how long.
From the previous discussion on Gould Estate v. Stoddart Publishing Co, it is clear that Gould had personality rights and could have sued for infringement. However, Gould had passed away 14 years before his estate brought an action against the defendant. The question was: could the Gould Estate sue for the invasion of Gould’s personality rights after Gould’s death?
The trial judge concluded that the Gould Estate had standing to sue because personality rights survive the death of the right-holder (in this case Gould) and descend to the right-holder’s heirs (in this case Gould Estate). The court recognized that personality rights might be extinguished after some time. However, Lederman J was cautious not to establish a particular limitation period within which right-holder’s heirs could sue for breach of such rights. Lederman J simply concluded that the limitation period is unlikely to be less than 14 years since the protection of other intangible property such as patents and copyrights is longer. Since Gould had passed away 14 years prior to Gould Estate’s commencement of the action against the defendant, Gould’s personality rights would not yet have expired.
Courts have not clearly identified all the necessary elements of the tort of appropriation of personality. However, a look at the different approaches in the case law, shows that the tort requires at least two conditions: (1) the name, image, likeness, voice, reputation or other unequivocal aspects of the plaintiff are commercially exploited by the defendant and (2) the plaintiff’s personality indicia is clearly and primarily depicted by the defendant. Where the latter element is not met but a claimant had previously marketed his image and the defendant’s use caused a commercial loss to the claimant, courts might still award damages.
Furthermore, the personality rights of an individual survive the individual’s death and allows for his or her heirs to protect the unauthorized use of such rights. It is unclear whether the rights expire after some time has lapsed since the death of the individual. However, ‘it seems reasonable to conclude that whatever the durational limit, if any, it is unlikely to be less than 14 years’ (Gould Estate v. Stoddart Publishing Co).