The essentials of publicity rights in Canada

Sources of law

Is the right of publicity recognised?

Publicity law in Canada is markedly different from its US counterpart. In the United States, ‘personality rights’ is the casual reference to the term ‘right of publicity’, defined simply as the right of an individual to control the commercial use of name, image, likeness and other unequivocal aspects of one’s identity (eg, the distinct sound of someone’s voice).

According to section 135 of the Canadian Encyclopedic Digest, the ‘right of an individual to control the use of his or her persona and to commercially exploit his or her personality is protected by statute in British Columbia, Manitoba and Saskatchewan and by virtue of the common law in Ontario and Alberta’. The Privacy Act of Newfoundland and Labrador (Newfoundland) also provides some basis to recognise a potential right of publicity, as does section 5 of the Quebec Charter of Human Rights and Freedoms.

Canadian common law recognises the right of personality on a limited basis. In Canada, rights of publicity are protected by the common law tort of ‘wrongful appropriation of personality’, sometimes referred to as ‘misappropriation of personality’, being the unauthorised commercial exploitation of a person’s name, image, voice or likeness. To be actionable, the use must clearly identify the person before any wrong will be attributed. Wrongful appropriation of personality is generally thought to have first been recognised in Canada as a cause of action in tort law in a 1971 landmark judgment of the Ontario High Court. In this case, the plaintiff, Robert ‘Bobby’ Krouse, a professional football player, who at the time was playing for the Hamilton Tiger-Cats Football Club, launched an action against Chrysler Canada Ltd, which had used his photograph in an advertising campaign for its cars without his consent.

Krouse was the only identifiable figure in the picture, and was therefore an essential element of the advertising campaign.

At trial, Krouse based his claim for relief on various established grounds, including unjust enrichment, passing off, invasion of privacy and compromising his contract with the football club, thereby subjecting him to potential litigation for breach of contract. The Court decided that this unauthorised use met the threshold of passing off but did not meet the legal test for defamation, copyright infringement or trademark infringement. The Court ruled in favour of the plaintiff, defining the unauthorised use as wrongful appropriation of the player’s property right in his image, particularly as Krouse’s image was viewed as a protectable commercial power supplemental to Krouse’s athletic ability, which Krouse had capitalised on throughout his career as a professional athlete. The Court noted that Krouse’s reputation and the value of his image were direct results of his work and efforts as an athlete and were his to exploit for further monetary gain.

The Court ruled that the plaintiff was therefore entitled to be compensated by the defendant for the wrongful appropriation of his property right in using his picture to sell cars.

The defendant appealed the decision, and the Court of Appeal found in favour of the defendant, holding that the plaintiff was only incidentally featured in the advertisement and the car was its primary feature. However, the Court of Appeal nonetheless recognised the existence of a tort broadly read to encompass how an individual controls his or her personality, confirming the tort of wrongful appropriation of personality as actionable in law and establishing the nature of publicity rights in Canada.

In the case Hay v Platinum Equities (Alberta, 2012) (Hay), the Alberta Court held that the tort of wrongful appropriation occurs even in circumstances of name and likeness only, without image. Very briefly, in Hay, the defendants required a loan from a bank to purchase a commercial property. To secure the loan, the defendants required a review engagement report from a chartered accountant (CA). Without the plaintiff’s knowledge or consent, this report was provided to the bank complete with the plaintiff’s name and professional designation as a CA on the plaintiff’s misappropriated letterhead. The plaintiff’s claim for damages rested upon his assertions that the defendant’s forging of his name and professional designation upon his corporate letterhead amounted to an appropriation of personality, and the Court agreed. The Court concluded that a professional’s name and reputation are entitled to be protected from unauthorised commercial use. The Court did not rule on whether a layperson or non-professional’s name and reputation is entitled to the same protection; however, in Aubry v Les Editions Vice Versa (Supreme Court, 1998), (Aubry), discussed at greater length in question 6, the Supreme Court ruled that the unauthorised use of the identity of any person (whether famous or not) for the purpose of profit is protected under privacy rights.

Canadian common law also recognises that personality rights may be protected through the newly adopted common law tort of ‘intrusion upon seclusion’, as established in the recent Ontario Court of Appeal case Jones v Tsige (Ontario, 2012) (Jones). Jones establishes that, in Ontario, an individual may have right of action where the following factors are present: ‘the defendant’s conduct must be intentional (which includes recklessness)’; ‘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’. Although proof of harm is not a necessary element of the tort, the court did impose a limitation of ‘reasonableness’ for such claims, stressing, that ‘claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive’. Therefore, it can be suggested that individuals may rely on this newly developed tort where there has been a violation of privacy arising from situations of an intimate nature. Reference to the common law tort of ‘intrusion upon seclusion’ was also discussed in the recent Ontario Superior Court case Wiseau Studio et al v Richard Harper (ONSC, 2017), which accepted the test as established in Jones, but determines that on the facts at issue, no intrusion upon seclusion had been established. And more recently, the Ontario Small Claims Court case of Vanderveen v Waterbridge Media Inc. (Ontario, 2017) (Vanderveen) accepted the test set out in Jones and found in favour of a jogger whose photograph had been taken without her consent and used in a promotional video for a soon to be built residential condominium.

What are the principal legal sources for the right of publicity?

Publicity rights fall under provincial jurisdiction, Canadian common law, or both, and rights and remedies vary from province to province accordingly. The provinces of Manitoba, British Columbia, Saskatchewan and Newfoundland have all enacted legislation governing personality. The most explicit provincial legislation is the Privacy Act of British Columbia, which states that an unauthorised use of name or portrait, including caricature, of another ‘for the purpose of advertising or promoting the sale of, or other trading in, property or services’ is a tort, actionable without proof of damage. Under this statute, in determining whether a particular action or course of conduct is a violation of another’s privacy one must take into consideration the nature, incidence and occasion of the act or conduct and the relationship between the parties. However, there is no infringement of a person’s privacy through the use of a name or image unless the person in question is identified by name or description, or his or her presence is emphasised, whether by the composition of the picture or otherwise; or recognisable, and the defendant, by using the picture, intended to exploit the plaintiff’s name or reputation. British Columbia’s Act is explicit that any claim for wrongful appropriation is extinguished upon death.

Manitoba, Newfoundland and Saskatchewan treat appropriation of personality as an example of violation of privacy, and their legislation is less explicit than British Columbia’s. Manitoba’s Privacy Act recognises violation of privacy as ‘a person who substantially, unreasonably, and without claim of right, violates the privacy of another person . . . ’, citing as a specific example unauthorised use of name, likeness or voice for the purposes of advertising, sales or any other trading. Saskatchewan and Newfoundland echo Manitoba’s legislation, and all three provincial acts state that any tortious use of a person’s name, likeness or voice arises when the individual is identified or identifiable and the defendant intended to exploit the name or likeness or voice. The nature and degree of privacy to which a person is entitled is that which is reasonable in the circumstances, with due regard being given to the lawful interests of others.

In British Columbia, Saskatchewan and Newfoundland, a right of action for violation of privacy is extinguished by the death of the person whose privacy is alleged to have been violated, while Manitoba’s legislation is silent on the issue of survival of a claim.

Yukon, Nunavut, Alberta, Ontario, Prince Edward Island, Nova Scotia and New Brunswick have not enacted privacy laws, other than incorporating protection of privacy into provincial freedom of information and protection of privacy legislation. Accordingly, these provinces and territories rely on Canadian common law.

A measured degree of protection of personality rights is found through the common law tort of wrongful appropriation of personality cited first in Krouse v Chrysler Canada Ltd et al (Ontario, 1971) (discussed in question 1), and later expanded upon in Gould Estate v Stoddart Publishing (Ontario, 1996) (Gould) (discussed in question 4), which explicitly references the American legal test of ‘sale versus subject’. Under the ‘sale versus subject’ approach, if the defendant has used the plaintiff’s likeness or name ‘predominantly in connection with the sale of consumer merchandise or solely for the purpose of trade’, then the tort of wrongful appropriation of personality would be established. This differs from the ‘subject’ approach, which focuses on whether the plaintiff is the subject of the defendant’s work; in this latter approach, the court is able to consider whether the defendant’s work is in the public interest and thus defensible in law. In the province of Quebec, where the Quebec Civil Code applies to matters arising within provincial jurisdiction, including property ownership (note that for historical reasons, the Quebec Civil Code is derived from France’s Civil Code and is in contrast to the common law system, which is based on the British system and applies in all Canadian provinces and territories other than Quebec), Quebec courts have applied principles of civil liability to allow compensation for the prejudice arising from use of a person’s image without his or her consent. In a Quebec case that went to the Supreme Court of Canada, the Supreme Court addressed how an individual’s right to privacy could take precedence over artistic and journalistic freedom of expression. This right to privacy protects, inter alia, a ‘narrow sphere of personal autonomy within which inherently private choices are made’. The Quebec Civil Code provides that every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his or her person, and the right to the respect of his or her name, reputation and privacy. These rights are inalienable. The Quebec Civil Code also recognises that use of a person’s ‘name, image, likeness or voice for a purpose other than the legitimate information of the public’ is an invasion of privacy.

The more recent tort of ‘intrusion upon seclusion’ is now protected under Canadian common law (discussed in question 1).

How is the right enforced? Which courts have jurisdiction?

In Canada, the right is enforced through civil litigation. If a person feels that he or she has been wronged, the individual may sue the alleged offender under tort law and the complainant must meet the civil law burden of proof, whereby the complainant must show that on a ‘balance of probabilities’ he or she suffered a ‘wrong’. This is in contrast to the Canadian criminal law burden of proof, under which the accused is presumed innocent and the prosecution is required to prove guilt ‘beyond a reasonable doubt’. Unlike certain other common law jurisdictions, and at least three states in the United States (Arizona, Louisiana and Oklahoma), protection of publicity rights does not fall within any section of the Criminal Code of Canada.

Most civil actions commence in the Superior Court of Justice, generally of the claimant’s province; these provincial courts are tasked with almost all criminal, civil and family law matters. A Superior Court decision may be appealed to the Court of Appeal in the applicable province, and following that, certain cases may be appealed to the Supreme Court of Canada. For cases with a lower financial threshold, a plaintiff may also institute a claim under the Small Claims Court of the applicable jurisdiction, as in the case of Vanderveen (discussed in question 1).

Are there other rights or laws that provide a claim based on use of a person’s name, picture, likeness or identifying characteristics?

Arguably, publicity rights share a nexus with the individual right to privacy, particularly where provincial legislation references the tort of violation of privacy through the unauthorised use of name or likeness or voice for advertising and promoting sales or trade. Yet publicity rights differ from privacy rights because, unlike privacy rights, publicity rights are individual property rights that can be alienable, assignable or descendible for commercial gain or otherwise. To succeed in an action for appropriation of personality at common law, a complainant must prove three things: that he or she is prominently displayed in the exploitation, be it through print advertising, television, radio or internet; that the exploitation clearly identifies the complainant, capturing the complainant’s quintessence; and that the exploitation was done for commercial purposes.

The tort of wrongful appropriation of personality is similar to but not synonymous with the tort of passing off. The law of passing off can be summarised in the simple proposition that no individual may pass off his or her goods as those of another. In the same vein, no person can imply another’s endorsement of any given product or service through unauthorised use of part or all of the bundle of rights found in the property of a personality.

Athans v Canadian Adventure Camps Ltd (Ontario, 1977) (Athans) is an early example of this in Canada, and involved a waterskiing expert who sued a children’s camp in Ontario after the camp published a distinctive photo of him in the camp’s brochure. The photo published was one frequently used by the plaintiff himself for his own promotional purposes, and the Ontario High Court of Justice, in granting the plaintiff’s action, cited the plaintiff’s own use of the image to secure endorsements with companies such as Benson & Hedges. Moreover, the image appropriated was sufficiently well known to be associated with the plaintiff’s characteristic personal style, and thus the defendant had clearly infringed on Athans’ right to market himself. In this sense, wrongful appropriation of personality evokes trademark law and actions in trademark infringement.

A 1996 Ontario court case forced Canadian courts to address the intellectual property aspect of recognising a proprietary claim in an individual’s personality, particularly in relation to Canada’s Copyright Act. The Copyright Act applied to photographs of Canada’s iconic concert pianist Glenn Gould, which had been published in a book written by the journalist Jock Carroll. Carroll, with Gould’s permission, had taken photographs of the musician in the course of conducting interviews and engaging in numerous one-on-one discussions. As the photographer, and pursuant to the Copyright Act, Carroll very clearly owned copyright in the photographs, but he did not have authorisation from Gould’s estate (the pianist had died prior to publication) to publish the materials. The estate, unable to allege copyright infringement, argued appropriation of personality. The defendant succeeded at trial, based in large part on what may be called the defence of public interest (discussed in question 16). However, importantly, this case was the first instance in which issues in copyright law were adjudicated alongside the proprietary rights in personality.

Existence of right

What aspects of a person’s identity are protectable under the right of publicity?

In Canada, rights of publicity are protected by the common law tort of wrongful appropriation of personality, being the unauthorised commercial exploitation of a person’s name, image, voice or likeness. Publicity rights deal with the individual’s right to control exploitation of his or her image. Since the Supreme Court’s consideration of the nexus between publicity rights and privacy rights in Aubry v Les Editions Vice Versa (Supreme Court, 1998) (Aubry) (see question 6), lower courts are bound by the Supreme Court’s deference to the individual right of privacy, which appears to have created near strict liability for the unauthorised use of any person’s identity - famous or not - for any commercial activity, whether or not such commercial activity generates a profit. Barring certain defences to infringement that must be analysed on a case-by-case basis, following Aubry, arguably no one in Canada can use images of friends, colleagues, neighbours, strangers or passers-by for any commercial exploitation without their consent, and Hay concludes that the wrong is in the use of any element of another person’s personality without authorisation for the purpose of commercial gain. Property rights in personality are separate and apart from the saleability of a personality or commerce resulting from a certain degree of public recognisability. A person can allege wrongdoing when his or her name, image or likeness has been publicly exploited without consent, regardless of whether profit has been derived by any party or harm incurred in libel.

Do individuals need to commercialise their identity to have a protectable right of publicity?

Although the tort of wrongful appropriation of personality hinges on the unauthorised exploitation of an individual’s name, likeness or voice generally for another’s commercial gain, there is currently no requirement for an individual to have commercialised (or attempted to commercialise) these attributes in order to exercise the right or rights.

Common law, until recently, emphasised an individual’s exclusive right to market his or her personality, and in one of Canada’s most famous cases, Athans, the court found that the defendant could have chosen among thousands of photos depicting water skiers but instead chose to use a well-known photo of a world-renowned water skier, who himself had previously been using the photo for his own commercial exploitation. By the defendant’s use of the photo, which was incidental to an advertising campaign and not even the primary object of the campaign (which was to solicit for campers), the court held that the plaintiff had lost control of his exclusive use of his promotional photograph. Thus, ‘the commercial use of his [the plaintiff’s] representational image by the defendants without his consent constituted an invasion and pro tanto an impairment of his exclusive right to market his personality and this . . . constitutes an aspect of the tort of appropriation of personality.’

In Aubry, a photographer took a picture of a young woman sitting alone on the front steps of a building in Montreal, Quebec. The picture was taken without the woman’s consent, but pursuant to the provisions of the Copyright Act, the photographer owned the copyright in the photograph, and presumably therefore was entitled to license and exploit the photo as he saw fit. In this case, the photographer licensed (without remuneration) the photograph to a literary magazine to accompany a short story. Only 722 copies of the publication were sold, but the plaintiff sought damages based on alleged harm to her dignity, claiming to have been ridiculed by her classmates at school. The case went all the way to the Supreme Court of Canada, and the Court upheld a finding of liability against the photographer. However, in this case the actionable basis of liability was the violation of the woman’s right to privacy as guaranteed in Quebec’s Charter of Human Rights and Freedom, and not just a violation of the intangible property rights in personality. The Court concluded that the purpose of the protection of privacy was to ‘guarantee a sphere of individual autonomy [. . . and] must include the ability to control the use made of one’s image, since the right to one’s image is based on the idea of individual autonomy, that is, on the control each person has over his or her identity’. Scholars such as Mitchell A Flagg (Star Crazy: Keeping the Right of Publicity out of Canadian Law, 1999) believe that the Supreme Court’s majority judgment fell victim to a general confusion that has infused the tort of appropriation of personality by inappropriately mixing and matching concepts in privacy and property. Following the Aubry decision, fault can be established in Canada in the event that the identifiable image of a person is published without consent.

May a foreign citizen protect a right of publicity under the law of your jurisdiction?

Legislation such as the provincial Privacy Acts and Canada’s Canadian Charter of Rights and Freedoms provide that individual rights to privacy and freedom of expression are available to ‘persons’ and ‘everyone’ respectively. The statutes do not refer explicitly to Canadian ‘citizens’. Constitutional jurisprudence has determined that such generic language in legislation means to embody individuals present in Canada, citizens or non-citizens. As such, a foreign national has a protectable right to publicity in Canada and can access the Canadian courts to exercise that right.

Is registration or public notice required or permitted for protection of the right? If so, what is the procedure and what are the fees for registration or public notice?

There is no system in Canada for registering proprietary interests in one’s personality. In contrast to intellectual property rights such as patents, trademarks, copyright and industrial design, in which authors or owners of the rights are able to register their interests, thereby creating a rebuttable presumption of ownership, there is no similar registry in place in respect of one’s personality rights.

Is the right protected after the individual’s death? For how long? Must the right have been exercised while the individual was alive?

In certain provinces, by statute the right is extinguished on death, while in common law the right is descendible on death for a period of at least 14 years. In Canada, the courts have specifically ruled that personality rights survive the death of an individual. Survivorship of personality rights was established in the 1996 civil action discussed in question 4. One of the preliminary issues in Gould was the issue of standing. Very clearly, Glenn Gould had personality rights and could have, had he been alive, sued for appropriation of personality. Gould, however, had passed away 14 years prior to the commencement of the lawsuit and the action was commenced by Gould’s estate. The court concluded that the estate had standing and confirmed that personality rights survive the death of a rights holder and such rights descend to a rights holder’s heirs. It is currently unclear, however, how long such rights survive. While the court recognised that personality rights might be extinguished after some indeterminate period of time, no particular limitation period was established. The court concluded, rather, that any limitation period was likely to be more than 14 years, analogising the protection of personality rights to other intangible property such as patents and copyrights, which was longer than 14 years. It is worth noting that legal scholarship argues that personality rights are similar to copyright interests, which, according to the Copyright Act, subsist ‘for the life of the author, the remainder of the calendar year in which the author dies, and a period of fifty years following the end of that calendar year’. In any event, it is reasonable to conclude that whatever the limit, if any, it is unlikely to be less than 14 years.

It is not necessary for the right to have been exercised while the individual was alive and no province or territory requires an individual’s identity to be commercialised in order for the right to exist. As a result, individuals need not exercise or proclaim their personality rights on a regular basis, if at all. When rights are infringed, to allege harm and to seek a remedy, individuals are limited only by statutory limitation periods within which they must file their claim of wrongful appropriation of personality, as against the alleged wrongdoer. With the exception of the statutes that specifically provide that wrongful appropriation of personality is extinguishable upon death, courts are generally in agreement that personality rights survive the death of an individual.