At the same time Andy Warhol was predicting the intense, short-lived “15 minutes of fame” that has now manifest as viral videos, legal scholars were pondering the implications of technology on our private lives. While nobody got as close as predicting that a social media website would get sued for using photos people voluntarily uploaded to promote products, legal remedies for “appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness” were already emerging in the 1960s.
So what is the law in Canada now? Can you sell “Damn Daniel” fidget spinners? Or use Chewbacca Mom to promote your crowd-funded hover boards? What if the person’s “fame” is their 407 Twitter followers? The answer is usually going to be “not without their consent”, but the reason why is a little less clear.
The Law on Misappropriation of Personality in Canada’s Common Law Jurisdictions
In Canada’s common law jurisdictions, if someone misuses your likeness to promote a product, your remedy will depend on where you live and whether or not you are living at all.
Four common law provinces have legislation that makes invasion of privacy a cause of action: British Columbia, Manitoba, Newfoundland and Labrador and Saskatchewan (the “Privacy Acts”). All four prohibit the use of a likeness for advertising. For example, the BC Privacy Act states it as follows:
(2) It is a tort, actionable without proof of damage, for a person to use the name or [likeness, still or moving] of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose.
Let’s call this “statutory misappropriation”.
Things get a little murkier when it comes to the common law. It is generally accepted that Canadian courts will recognize misappropriation of personality as a cause of action that is “proprietary in nature and the interest protected is that of the individual in the exclusive use of his own identity in so far as it is represented by his name, reputation, likeness or other value.” Claims of misappropriation of personality have typically been advanced by famous people, such as CFL linebacker Bob Krouse and the estate of Glenn Gould (both failed). Damages have been tied to the royalties the celebrity in question would have received if they had consented to the use of their likeness. That all said, the Ontario Court of Appeal has stated that “Ontario has already accepted the existence of a tort claim for appropriation of personality” in reference to the theoretical privacy tort of “appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness”. That decision suggests that misappropriation of personality even extends to the non-famous, although we cannot yet say this is definitive across all common law jurisdictions.
Do Personality Rights Survive Forever?
All of the Privacy Acts state that the right to sue for invasion of privacy is extinguished by the death of the affected person, except for the Manitoba Privacy Act, which is silent on duration.
The duration of a right to claim for misappropriation of personality likely survives death but it is not clear for how long. At least one Canadian court has suggested it survives death but did not specify for how long. That makes sense when you consider that part of the reason for the right is to give famous people the exclusive right to monetize their fame. Just like copyrights, they should be able to pass the economic value of their personality rights to their heirs.
Does Misappropriation of Personality Still Apply?
The Privacy Acts suggest that a person could sue for both misappropriation of personality and statutory misappropriation. Except for British Columbia, the Privacy Acts state that the rights under the legislation do not derogate any other rights of action or remedy otherwise available. While a court could find that the British Columbia Privacy Act is a full codification of misappropriation of personality, there is a decision from the Supreme Court of British Columbia that considered claims for misappropriation of personality and statutory misappropriation separately (but dismissed both because the individual was not actually identifiable).
The co-existence of statutory and common law claims suggests that, while the dead cannot pursue claims of statutory misappropriation, common law misappropriation may still be available.
What are the Implications?
If you are going to include someone in your advertising or promotions (through their name, likeness, portrait, voice, caricature or otherwise) you need their consent. If you are unsure of whether or not what you are doing constitutes misappropriation, you need legal advice.