Sponsorship and image rights

Concept of image rights

Is the concept of an individual’s image right legally recognised in your jurisdiction?

The concept of an individual’s image right is legally recognised in Canada in a quasi-trademark sense. Well-known athletes have a unique and valuable commercial asset in their right of self-promotion and authorising the use of their image. This right exists in the common law and has been codified in some provincial legislation.

Image rights are not the subject of registrations in Canada.

Commercialisation and protection

What are the key legal considerations for the commercialisation and protection of individuals’ image rights?

The cause of action of ‘appropriation of personality’ is recognised in Canada. To succeed, the athlete must establish that the defendant intentionally appropriated his or her persona for gain.

How are image rights used commercially by professional organisations within sport?

The commercial use of image rights by professional organisations within sport is relatively standardised across sports organisations. The standard player’s contracts for most professional sports leagues provide that the club to which a player signs has the right to take and make use of photographs, motion pictures or electronic images of the player for promotional purposes. Further, through these contracts, players agree not to make public appearances, give interviews or endorse commercial products without the club’s written consent, which is not to be unreasonably withheld.

Morality clauses

How can morality clauses be drafted, and are they enforceable?

Morality clauses are enforceable, but inconsistently across provinces. Generally, to be enforceable, the terms of the clause must stipulate the conduct to which it applies. Some clauses only apply to future conduct, while others require what amounts to a warranty of past good conduct. Some clauses enumerate a closed set of specific conduct that will violate the clause, others are vaguer and are drafted in terms of conduct that would bring the counterparty’s reputation into disrepute or harm the goodwill associated with them.

Restrictions

Are there any restrictions on sponsorship or marketing in professional sport?

There are both contractual and governmental regulatory restrictions on sponsorship and marketing in professional sport. Contractually, where an individual or organisation is engaged in multiple sponsorship agreements, they must watch for conflicting endorsements.

With regard to regulation, there are limitations imposed on the tobacco, cannabis and alcohol industries that prevent them from promoting or advertising their products in relation to sport.

The Canadian Code of Advertising Standards provides an additional layer of consumer protection against misleading advertisements and disingenuous testimonials.

Law stated date

Correct on

Give the date on which the information above is accurate.

The information in this chapter is accurate as at 10 September 2019 except for the question on Taxation.