Appropriation of Personality: Canada's Position
September 21, 1999
By Lee Muirhead |
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Celebrities in the United States, and their heirs, have been vigilant about exercising control over the use of any aspect of the celebrities' personalities, and the case law in the United States is well developed.
The tort was first recognised by the Ontario Court of Appeal in Krouse v. Chrysler Canada Ltd. in 1972 but, in the 24 years between the Krouse decision and the decision in Gould Estate v. Stoddart Publishing Co. (1996), there have been only a few Canadian cases, which merely confirmed the existence but did not advance the analysis of the tort. Recently, plaintiffs have become more aggressive in asserting claims for appropriation of personality here and, although they have not been successful on the merits, in three recent Ontario decisions, courts have had an opportunity to articulate the current Canadian position on appropriation of personality.
Krouse v. Chrysler Canada Ltd.
As stated above, appropriation of personality was first recognized as a tort in Canada by the Ontario Court of Appeal in Krouse v. Chrysler Canada Ltd. In that case, Chrysler Canada had used a photograph of a football player, Bobby Krouse, to illustrate football action on an advertising product. Although the trial judge had ruled in favour of Krouse, the Court of Appeal allowed the appeal and dismissed the action but affirmed that the tort was recognized under the common law where a celebrity's personality is used to endorse a product or service without his or her consent. According to Estey J.A., a professional athlete has a commercial property right with regard to his photograph or likeness when it is used in advertisements. However, where a photograph is not used to suggest an endorsement of the product by the individual but is only used to illustrate the sport in which the athlete participated, he has no cause of action.
Gould Estate v. Stoddart Publishing Co.
In Gould Estate v. Stoddart Publishing Co., the estate of the deceased musician, Glenn Gould, sued the defendant author, Jock Carroll, and the defendant publisher, Stoddart Publishing Co., for damages for the tort of appropriation of personality.
In 1956, Carroll had interviewed Gould and taken several pictures of him for a magazine article. In 1995, after Gould's death, Carroll published a book on the pianist which included the photographs, and in which the text was based largely on the interviews, without the consent of the estate.
The action was dismissed by the trial judge, who made the distinction between the: (i) use of the celebrity as "subject matter" where the activity in question consists of thoughts, ideas, newsworthy events or matters of public interest, and (ii) use of a celebrity's name or likeness to promote the sale of goods or services or solely for the purposes of trade. The judge held that the latter use constitutes commercial exploitation and, unless consented to, constitutes the tort of appropriation of personality. On the other hand, where the celebrity is the "subject matter" of the material in question, the tort is not established. The judge concluded that Gould was the subject of the book and that there was a public interest in knowing more about him. The book, therefore, fell into the protected category, and there was no right of personality that had been unlawfully appropriated by the defendants.
Although the judge had found that the personality of Glen Gould had not been unlawfully appropriated, he went on to comment on the issue of whether the tort survives death and stated that "the right of publicity, being a form of intangible property under Ontario law akin to copyright, should descend to the celebrity's heirs." He expressed some doubt as to the appropriate period in which such right should endure but stated that such period was unlikely to be less than 14 years (the period at issue in the Gould decision).
Shaw v. Berman
In Shaw v. Berman et al. (1997), the plaintiff, Artie Shaw, was a musical entertainer who gave the defendant, Brigitte Berman, permission to make a documentary about his life. After the film won an Academy Award, Shaw asked Berman for part of the profits. She refused. The trial judge concluded that the tort of appropriation of personality did not apply in this case, since the plaintiff had consented to the film being made. In addition, the judge found that the facts were sufficiently similar to those in Gould, namely that the celebrity in this case was the subject of the work, to warrant a similar disposition. The decision of the trail judge was upheld by the Ontario Court of Appeal.
Horton v. Tim Donut Ltd.
In Horton v. Tim Donut Ltd. et al. (1997), the plaintiff was the widow and beneficiary of the estate of Tim Horton, a famous hockey player.
Before his death, Mr. Horton and a partner had established a chain of "Tim Horton" donut stores. In 1965, the individual defendant purchased 50% of the shares in the defendant company from Mr. Horton and his wife. Following Mr. Horton's death, he purchased the remaining shares from the plaintiff.
In 1991, a portrait of Mr. Horton was commissioned as part of campaign to support a children's foundation established by the defendant company. The portrait was completed in April 1992 and reproduced in limited edition prints. Three years later, the plaintiff commenced an action for unlawful appropriation of commercial personality and copyright infringement. The defendants brought a motion for summary judgement which was granted. The trial judge concluded that the tort of appropriation of personality was based on interference with a celebrity's right to control and market his own image, but that there could be no such interference where the celebrity gave over the right. In this case, use of representations of Mr. Horton were part of the early marketing initiatives of the defendant company, as a result of which the company had acquired the personality rights of Mr. Horton. Therefore, the hanging of the portrait in the defendant's stores could not amount to an unlawful appropriation of the Mr. Horton's personality. Additionally, the trial judge noted that the predominant purpose of the portrait was charitable and commemorative, not exploitative or commercial, and there was a public interest in knowing more about the individual. Therefore, it fell in the protected category established by in Gould. This decision was also upheld by the Ontario Court of Appeal.
Conclusion
The tort of appropriation of personality is not only alive and well in Canada but appears to survive the death of a celebrity. Ontario courts have placed the following important limits on the availability of relief:
Where a celebrity is the subject matter of a work, the public's interest in knowing about the celebrity will defeat a claim for appropriation of personality.
Where the celebrity has consented to the use of his or her likeness, a claim for appropriation of personality will not succeed.
The right to exploit a celebrity's personali ty commercially may be transferred to a third party, and the celebrity and his or her estate will have no right to restrain such exploitation by the transferee.
However, the same decisions have confirmed that the unauthorized use of a celebrity's likeness, name, or any other identifiable aspect of personality to promote the sale of goods or services may be restrained.
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