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Are Your Personality Rights Protected?
The Medium

The present day is marked by the propagation of cameras in nearly every device and the ability to instantaneously share and spread photos and information. The result has been to make it exceedingly difficult for individuals to protect themselves from having their image or likeness used without their consent, and to control how such image or likeness is used.
 
Individuals have a right to protect the use of what the courts have coined their “personality rights”. Considering the potential breadth of such rights and the technological advances in making images available, it is surprising that Canadian law on the subject has changed little since its inception in the 1970s. As privacy and anonymity become rarer, this area of law will likely become a hotbed for legal development. However, prior cases will serve as a starting point for this development, which begs the question of what is the state of the law right now?
 
The Tort of Appropriation of Personality

Over 40 years ago, Canada formulated a tort of appropriation of personality in the 1973 Ontario Court of Appeal case of Krouse v Chrysler Canada Ltd. et al.  (“Krouse”). In Krouse, Chrysler had distributed a device which had the names and numbers of all professional football players and was designed to assist people who watched professional football on TV to identify players. The device also had advertisements for Chrysler’s vehicles. The respondent football player, Krouse, had argued that he had not consented to the use of his photograph, and that he was entitled to damages because something of commercial value to him had been misappropriated by Chrysler on the basis of passing-off. Although passing-off is a well-recognized tort in intellectual property (IP) law, it did not apply in this case since the parties were not in a common field of endeavour, and the public would not believe that the device had been manufactured by Krouse. Although the court eventually dismissed Krouse’s claim, it created a common law tort of appropriation of personality in the process.
 
In effect, the tort allows an individual to control the commercial use of his or her name, image, likeness, voice or reputation or other unequivocal aspects of his or her identity. In the end, Krouse’s claim failed due to the fact that Krouse himself was not identifiable (it was only his back and jersey in the photo), and the use could not be seen to endorse Chrysler’s automobiles.
 
The tort was affirmed several years later in the 1977 case of Athans v Canadian Adventure Camps Ltd. (“Athans”). Unlike in Krouse, the tort of appropriation of personality was actually established. In Athans, the distinctive pose of a famous skier was used to promote a camp. Although it was just an outline of the skier, it was clearly and recognizably him. The tort was made out because the use of the image was for a commercial purpose (promotion of the camp) and it capitalized on an identifiable and distinctive portrayal of the skier. In coming to this decision, the court effectively carved out a narrow exception where clear depiction is not necessary and which appears to apply in situations where the plaintiff has already marketed and charged for the use of the image.
 
The court concluded that “the commercial use of his 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”.
 
A further interpretational aspect of the tort of appropriation of personality comes from the 1996 Ontario case of Gould Estate v Stoddard Publishing (“Gould Estate”). While Gould Estate is most often cited for the idea that personality rights can be inherited, it also stands for the creation of the “sales vs. subject” distinction. Gould Estate concerned the publishing of a book about Glenn Gould, a famous pianist who had passed away. The recordings used for the text, as well as the pictures taken, were obtained during an interview with Gould at the beginning of what would become an illustrious career. The book came out nearly 40 years after the interview, but without the permission of Gould or his estate. The court, in dismissing the claim for appropriation of personality, had the following to say: 

“In the end then […] it seems that courts have drawn a “sales vs. subject” distinction. Sales constitute commercial exploitation and invoke the tort of appropriation of personality. The identity of the celebrity is merely being used in some fashion. The activity cannot be said to be about the celebrity. This is in contrast to situations in which the celebrity is the actual subject of the work or enterprise, with biographies perhaps being the clearest example. These activities would not be within the ambit of the tort. To take a more concrete example, in endorsement situations, posters and board games, the essence of the activity is not the celebrity. It is the use of some attributes of the celebrity for another purpose. Biographies, other books, plays, and satirical skits are by their nature different. The subject of the activity is the celebrity and the work is an attempt to provide some insights about that celebrity.”

From these foundational cases arise the major elements of the tort of appropriation of personality:

  1. The use must be for a commercial purpose; and
  2. The exploitation must clearly and primarily capture the plaintiff.

Despite renewed concerns of privacy and protection of a person’s identity, the tort of appropriation of personality has been used surprisingly little. To the extent that there has been subsequent case law, it has largely continued to follow the founding principles of the tort laid out in Krouse, Athans, and Gould Estate. Although several provinces have enacted privacy legislation which largely mirrors the common law tort, Alberta has yet to do so and the common law tort is all that may be applicable.
 
Other Developments in Protection of Image and Likeness
 
Only Quebec, with its Civil Code and Quebec Charter of Human Rights and Freedoms which provide particular protection for an individual’s private life, has made any substantial modification. In the 1998 SCC case of Aubry v Editions Vice-Versa Inc. (“Aubry”), a non-celebrity objected to the use in a magazine of a photograph of her that was taken without permission while she sat in a public space. The court found that “Since the right to one’s image is included in the right to respect for one’s private life, it is axiomatic that every person possesses a protected right to his or her image. This right arises when the subject is recognizable.” As a result, the Quebec legislation appears to do away with the commercial requirement under common law. Applicability of the decision in common law Canada however is doubtful, given the uniqueness of the Quebec legislation.
 
The Role of Celebrity
 
The issue of what role celebrity or notoriety plays in the tort of appropriation of personality is also a complicated one. On the one hand, being a celebrity is not absolutely necessary for the tort to be made out. So long as there is a commercial purpose to the use of someone’s personality or likeness, it is, to quote the court in Athans, an “invasion of the plaintiff’s exclusive right to market his personality”.
 
On the other hand, it is hard to think that without someone being a celebrity, there would be much in the way of marketability of his or her personality. That being said, the 2012 Alberta decision of Hay v Platinum Equities Inc. concerned an accountant whose signature had been forged by a company in order to secure loan financing. In that instance, the court concluded that “A professional’s name and reputation is entitled to be protected from unauthorized commercial exploitation every bit as much as a celebrity’s name and likeness”, raising the possibility that professionals could also utilize the tort.
 
Personality vs Privacy
 
Although personality and privacy are intertwined as noted in Aubry, they remain distinct concepts. The tort of appropriation of personality concerns a commercial use of an individual’s likeness, while privacy concerns rights of seclusion and to keep information to one’s self. One focuses on external (commercial) harm, and the other on internal (personal) harm. The existence of the tort of intrusion upon seclusion, as separate from appropriation of personality, confirms this difference. Ontario, once again at the centre of these issues, recognized a tort of intrusion on seclusion in the 2012 ONCA case of Jones v Tsige (“Tsige”). In Tsige, the plaintiff and defendant worked at the same bank, but at different branches. The defendant had developed a common law relationship with the plaintiff’s ex-husband, and over the course of four years the defendant used her workplace computer to access the plaintiff’s personal bank accounts at least 174 times. In the result, the court decided to adopt the tort of intrusion upon seclusion, which has three requirements:

  1. That the defendant’s conduct be intentional, within which is included recklessness;
  2. That the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and
  3. That a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

The tort articulated in Tsige has the advantage of being actionable without actual damages, and without the need for a commercial exploitation of the private information.
 
Conclusion
 
The trio of Krouse, Athans, and Gould Estate provide the fundamental concepts of the tort of appropriation of personality and help define what personality rights are. However, these cases were decided long before the smartphone with its distributive powers. They also have a focus on the commercial use of someone’s personality, which lends no protection to other uses of an individual’s personality. This requirement may stunt the tort’s overall usefulness for complainants, leading either to a modification of the tort or, more likely, to additional legislation or new tort development.


Contact our Intellectual Property + Technology Group to review your personality rights and how these rights in Canada can be infringed and protected.