William Shatner made headlines in November when he took to Twitter to express his displeasure that his name and likeness were used without his permission to promote a condo development in Hamilton, Ontario. The development in question offered units named after several television stars - including the Canadian-born Shatner, former Tonight Show host Jay Leno and comedian Betty White - and used promotional material featuring caricatures of those stars to promote the units.
While it seems as though the matter has been settled in the court of public opinion – indeed, following an exchange of tweets, all references to the television stars have been removed from the condo’s online promotional material – this story serves as an important reminder to marketing professionals that the use of someone else’s image without authorization can raise legal issues.
In Canada, recognizable individuals like Shatner enjoy “personality rights”. In the legal context, “personality” refers to a person’s name, likeness, voice, or other distinctive feature which identifies them.
Famous people possess a certain amount of value in their personality, for the very reason that they are well known and businesses are generally willing to pay them to endorse a product or service. The common law (and in Quebec, the Civil Code) recognizes that these individuals have the exclusive right to exploit their personality for commercial purposes. Accordingly, to use a famous individual’s personality for commercial gain without authorization is to commit the tort of “misappropriation of personality” and can trigger damages awarded to the wronged individual.
The tort of misappropriation of personality can be distilled into three elements:
- The exploitation of the plaintiff’s personality is for a commercial purpose.
- The plaintiff’s personality is clearly captured so that he or she is identifiable.
- An endorsement by the plaintiff is suggested.
Actions which amount to misappropriation of personality can run a broad spectrum of activity ranging from using the name or photograph of a professional athlete on a product package, to using a singing voice which imitates that of a famous recording artist in a television commercial.
Given the continued proliferation of advertising activities online, particularly on social media, the opportunities for the misuse of a personality (even innocently) have expanded. For these reasons, marketing professionals must proceed with caution when creating content which suggests (even peripherally) a connection with, or sponsorship by, a famous individual.
But what about non-famous people?
It is unlikely that those who do not enjoy any particular notoriety would be able to sustain a claim for misappropriation of personality for the use of their name, likeness or voice for commercial purposes. This is because non-famous people usually do not have a marketable personality.
However, this lack of protectable personality does not mean that images of non-famous people are public domain and can be used for commercial purposes with impunity. In fact, the contrary was expressly found in a recent Ontario Small Claims Court decision.1
In this case, an Ottawa woman successfully sued a production company for breach of privacy for using film footage of her taken without her permission. The defendant had filmed the plaintiff while she was jogging in a public place. The footage of the plaintiff appeared in a 2-second clip as part of a promotional video for a condo development. When the plaintiff learned that her image was being used in this manner without her consent, she was distraught since the image in the video was not the image she wished to portray publicly.
By finding in the plaintiff’s favour, the judge cited with approval the 2012 decision of the Ontario Court of Appeal in Jones v Tsige2, which recognized the right to bring a civil action for damages for the invasion of personal privacy – or “intrusion upon seclusion”.
The key features of this cause of action can be summarized as follows:
- The defendant’s conduct must be intentional, which includes reckless;
- The defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and
- A reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.
In applying the test to the facts of the case, the judge found that in capturing the image of the plaintiff and publishing it in a commercial video, the defendant committed the tort of intrusion upon seclusion.
As an interesting defence, the production company argued that to obtain consents to appear in a photo or video in these circumstances would be “impractical” given that hundreds of people would be photographed in a public setting but only a few dozen at most would appear in the edited and final video. The judge rejected this argument on the basis that “the important right to privacy prevails over any non-public interest, commercially motivated and deliberately invasive activity.”
The plaintiff was awarded $4,000 in damages.
This case serves as a caution to marketing professionals that the use of people’s images, taken in a public place without permission, could amount to an actionable breach of privacy. Companies can reduce risk in such situations by ensuring individuals cannot be easily identified, such as by excluding faces or using a distance shot. Where it is important to have use of a person’s recognizable image, then it is best practice to obtain consent or hire an actor.
Fundamentally, when using images of any individual for commercial purposes, whether those individuals are famous or not, it is prudent to ensure that the necessary consents have been obtained before publishing the material.