Everyone has a personality, and in this day in age, with the advent of the Internet and modern technologies like Youtube, Facebook and smart phones, those capable of attracting commercial value through their image/personality is rapidly increasing. For those with an image that can be monetized, there is always the risk of others trying to earn profits without permission, or without paying a royalty. To this end, Canadian law provides a cause of action to address the commercial misappropriation of personality. 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 this decision, a few cases have dealt with the tort of appropriation of personality. The tort can be said to require the following three elements:
- Exploitation of the plaintiff’s personality 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.
With respect to the first element, 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.
With respect to the second element, 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.
With respect to the third and last element, 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.
With what pertains to 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.
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.
