Everyone has a personality, but few of us are fortunate enough to have a personality with any significant commercial value. For that notorious minority with an image that can be converted into dollars, there is always the risk of others trying to cash in without permission, or perhaps more importantly, without paying a royalty. Canadian law provides a cause of action to address the unauthorized exploitation of one’s personality. However, the law in this area is still developing, and the exact scope of personality rights remains uncertain. The primary remedy for the unauthorized use of one’s personality is an action in tort for appropriation of personality. The term “personality” in this context refers to the personal attributes that are attached to the person by the community and that make the person well-known. Such attributes could include a person's image, likeness, voice or anything else that identifies the person to the public.
This tort was first recognized in Canada in the 1973 decision of Krouse v. Chrysler Canada Ltd. In that case, the Ontario Court of Appeal recognized that persons in the public eye had the right to commercialize their notoriety. The plaintiff, Krouse, was a moderately well-known professional CFL football player. The defendant, Chrysler, used an action photograph on a promotional item for its 1970 vehicle models in which Krouse was identifiable by his team uniform and jersey number. The key issue before the Court was whether Chrysler’s use of the photograph was an appropriation of Krouse’s personality that should be compensated by damages. The Court concluded that the photograph was used only to associate Chrysler’s products with the popular game of football and not with any particular player. The photograph was not used in such a way as to associate Krouse with the product or create a suggestion of an endorsement relationship.
Since Krouse, there have only been a handful of cases dealing with the tort of appropriation of personality. Considering the case law as a whole, the tort can be said to require the following three elements:
- The exploitation of the plaintiff's personality must be for a commercial purpose.
- It must clearly capture the plaintiff's personality so that he or she is identifiable.
- It should suggest an endorsement by the plaintiff.
Commercial purpose. The tort of appropriation of personality is founded on the right to commercialize one’s personality. This right is only infringed where the plaintiff’s personality is commercialized without authorization. The tort can not be established if the use of the plaintiff’s personality is for a non-commercial purpose. For example, in Horton v. Tim Donut Ltd., the Court held that use of a portrait of the hockey player Tim Horton to promote a charity was neither exploitive nor commercial and did not constitute an appropriation of personality.
Clearly capture the plaintiff’s personality. The use of the plaintiff’s personality must be clearly identifiable to the public. In other words, the public must recognize the plaintiff as a well-known person; otherwise, the defendant is unlikely to obtain an unfair benefit and the plaintiff is unlikely to have suffered any loss. In one case, the Court held that the unauthorized use of a photograph of the torso of a male model was not an appropriation of personality because the plaintiff could not be identified from the photograph. The result could have been different if the plaintiff was famous for his torso. In another case, the plaintiffs were known for a cooking show. The defendant used a photograph of the plaintiffs in a real estate advertisement, believing it to be a generic photograph. The Court found that photograph did not capture any aspect of the plaintiffs’ personalities that would make them recognizable to the public.
Suggestion of endorsement. Most cases have required that there be a suggestion that the plaintiff is endorsing the defendant’s products or services. For example, a biography would not normally be an appropriation of personality, even if it includes many photographs of and quotes from the plaintiff, because the public will not assume it is endorsed by the plaintiff. However, in one case, the Court concluded that a suggestion of endorsement is not required to find appropriation of personality. Therefore, it is not entirely clear whether this element must be shown in all circumstances. It is hoped that future cases will clarify this issue.
Damages. If the plaintiff is successful in proving an appropriation of personality, the burden rests on the plaintiff to prove what damages have been suffered. To determine the amount of damages, it is expected that courts would consider factors such as the standard royalty or fee charged by the plaintiff (if any), the profits earned by the defendant and the damage to the reputation of the plaintiff.
Applying the test. As a hypothetical exercise, we will apply the three-part test to the following scenarios to determine whether there is an action for appropriation of personality.
A music store puts the photograph of a popular local radio DJ on a display of CDs. The use is for commercial advantage. However, most people don’t know what radio broadcasters look like; therefore the photograph likely does not clearly capture the plaintiff's personality. The result would be different if the plaintiff’s voice or name had been used. It would be logical to infer an endorsement relationship if the plaintiff is recognizable. A finding of appropriation of personality is unlikely, unless the local DJ is recognizable to the public from his photograph alone.
A street vendor sells t-shirts with a photograph of a popular singer on the front. The use is for commercial advantage, and the subject is readily identifiable. It would be expected that a singer would commercialize his or her personality by selling merchandise bearing his or her image. A finding of appropriation of personality is likely.
A summer hockey camp produces brochures with a picture of a famous hockey player in which his NHL team and jersey number are visible, but his name and face are not visible. The image is used for a commercial purpose, unless it is a charity camp. The team and jersey number of a famous NHL player are sufficient for the public to recognize him as a well-known person, even where his face and name are not visible. At first blush, there appears to be a suggestion of endorsement. However, if there is no other mention of the player in the brochure, it is unlikely that the public will conclude he has endorsed or will attend the camp since that fact would certainly be highlighted. It is questionable whether the requirement of a suggestion of endorsement is met. There is an even chance of a finding of appropriation of personality.
A person takes your photo on the street and puts it on billboards for a new condo development. The use is for a commercial purpose. Assuming you are not a celebrity, the photograph will not capture an aspect of your personality that makes you well-known to the public. A finding of appropriation of personality is unlikely.
Where there is an allegation of appropriation of personality, several other causes of action may also be present, including for breach of copyright, passing off and invasion of privacy. Where the appropriation involves a copyrighted work such as a photograph, drawing or sound recording, the plaintiff should consider the source of the work and whether copyright can be asserted. Where the appropriation could lead to confusion between the business of the plaintiff and that of the defendant, a passing-off action may be available. Finally, where the appropriation involves use of the plaintiff’s image without consent or beyond the consent given, it may constitute a breach of privacy rights. The tort of invasion of privacy is in its infancy in Canadian common law and has not been established. However, the Quebec Charter of Human Rights provides a right to privacy. This has been interpreted by the Supreme Court to encompass situations where a photograph is used without consent, or beyond consent, in a public forum and where the plaintiff can show a resulting prejudice.
The opportunities for misappropriation of personality have increased in the last decade. The integration of the internet into the everyday life of most Canadians has created a broad and instant target market for online commercial activities. It is likely that persons using the internet to promote their businesses will sometimes misuse famous personalities, whether innocently or opportunistically, to gain commercial advantage. Resulting future law suits will likely lead to further development and clarification of the law of misappropriation of personality in Canada. In the meantime, for anyone with a marketable personality, it is recommended to supplement the rights available under tort law to the extent possible. Possible additional protection is available under contract, trademark and copyright law.
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