Is This What it Sounds Like when Doves Cry: The PRINCE Act and Canadian Privacy Law

The once proposed PRINCE Act [the Act] has now been set aside after being rushed through the Minnesota state senate. The Act sought to create a new property right in a person’s persona. Canada and the United States both recognize and protect personality rights through similar common law torts. The US appears to also seek codification of such rights while most Canadian jurisdictions continue to rely on the common law. Nonetheless, it is evident that both countries are unequivocal in their recognition and protection of an individual’s right to control, market and profit from the use of aspects of their personality or likeness.

Its Purpose is the Protection of Personality Rights

The Act was first introduced to the Minnesota Senate in the wake of the death of world-famous musician and Minneapolis native Prince, who died unexpectedly and without a will. The PRINCE Act, as reported, is short for Personal Rights in Names Can Endure Law, had its introduction and first reading on May 9th, 2016. The Act reportedly required special clearance to proceed quickly through the reading but failed to pass before the end of the legislature’s session.

The Act provided a potential plaintiff with a claim for commercial appropriation by recognizing “a property right in a person’s name, voice, signature, photograph, or likeness [“Personality Property Rights”].”  Not only did the Act provide exclusive rights to the individual during their lifetime, it proposed the protection of those rights for a minimum of 50 years after death. After death, the rights would be transferred to an executor, administrator or heir, who would maintain ownership of the right until a successful claim of non-use for commercial purpose was made.

The Act would prohibit the unauthorised use of a persons’ protected personality property for commercial gain and provides a variety of remedies from an injunction to damages. Fair use, however, remains an important limitation. The limitation for fair use is a mirror of Title 17 of the United States Code: s. 107 – Limitations on exclusive rights: Fair use. As a result, any of the protected property types with connections with the news, public affairs or sports broadcast would be deemed fair use and therefore permissible under the act.

How does it compare to Canadian Law?

Currently, there are four Canadian common law provincial jurisdictions with Privacy Acts—British Columbia, Manitoba, Newfoundland, Saskatchewan—that provide a cause of action for the unauthorized appropriation of another’s personality. In jurisdictions without a written statute, the common law tort for wrongful appropriation of personality is used to protect proprietary rights similar to those that would be protected under the PRINCE Act had it been passed.  The tort prohibits the commercial exploitation of another’s name or likeness without permission. Although there is some uncertainty as to how far the tort extends, Canadian jurisprudence suggests that it covers at least the use of another’s personality, image and name. A successful plaintiff must prove the defendant intentionally appropriated  their personality for commercial gain.

Notably, Canadian common law also protects one’s exclusive right to market his/her own personality. A plaintiff can recover damages resulting from an infringement, even without proving intentional appropriation for commercial gain.

Similar to the proposed PRINCE Act, the tort of misappropriation of personality has built within it a public interest limitation. In Gould Estate v. Stoddart Publishing Co. [Gould Estate] the plaintiff’s appropriation of personality action failed because the court deemed the impugned use of Glenn Gould’s photographs and interview material as a permissible use in the interest of the Canadian public. Consequently, it appears that thoughts, ideas, newsworthy events and matters of public interest are exempt from the tort of misappropriation of personality.

The Canadian common law and the PRINCE Act diverge on the topic of posthumous protection. The Privacy Acts of British Columbia, Newfoundland and Saskatchewan provide that the common law protections on personality rights extinguish upon the death of the person holding those rights (Manitoba’s statute, however, lacks such a provision). Despite three of four provincial acts prohibiting the survivability of the right, in Gould Estate the Ontario Court of Justice held that such an intangible proprietary right was akin to copyright and therefore should be devisable to heirs. The decision was later appealed and upheld, albeit on different grounds. As a result, there is still much confusion as to whether the proprietary rights protected by the tort of appropriation of personality are indeed devisable and, if so, how long after death the rights would survive.

Difficulties ahead

It is unclear how broad in scope the fair use exemptions with be under the PRINCE Act, if it is eventually passed. The courts may gradually carve out its scope on a case-by-case basis. The definition of fair use in the PRINCE Act and the public interest limitation in Canadian common law seem to protect altruistic uses in which the object is to provide the public with information. It will be particularly interesting to see how the court handles situations in which such altruistic pursuits lead to material commercial gain by another.

Olivia McKenzie is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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