A Problem On The Rise

Personality rights in Canada stem from an individual's publicity rights - which are proprietary in nature - and from the right to privacy, a personal interest. They are protected by common law and statute. Common law torts may be used to protect personality (outside Quebec): misappropriation of personality and passing off.

The tort of misappropriation of personality recognises an individual's proprietary right to commercially exploit his or her own name, image, voice and other components of personality that are associated with or identify him or her (Joseph v Daniels (1986), 11 CPR (3d) 544 (BCSC) at 549; Krouse v Chrysler Canada Ltd (1973), 13 CPR (2d) 28 (Ont CA) at 44; Athans v Canadian Adventure Camps Ltd (1977), 34 CPR (2d) 126 (Ont HCJ) at 136). Central to this tort is whether some component(s) of the claimant's personality have been used by the defendant and whether this use took place without permission and for the defendant's commercial gain. The defendant's intent is relevant, but not determinative.

This tort in Canada was first discussed in Krouse and endorsed five years later in Athans. Both cases involved sports figures whose likenesses were used on promotional materials distributed by the defendants. In Krouse the court found no misappropriation. The photograph in question showed only Krouse's back and jersey number amid a crowd of players. He himself was not identifiable and the use could not be seen to endorse the defendant's automobiles.

However, misappropriation was found in Athans, since a line drawing used of Athans, a professional water-skier, in his signature pose identified him. The court found that the use of the drawing in the defendant's summer camp promotional brochure could have impaired Athans' exclusive right to market his personality through endorsements.

Courts have suggested that personality rights survive death. Gould Estate v Stoddart Publishing Co ((1996), 74 CPR (3d) 206 (Ont Ct (Gen Div)), aff'd (1998), 80 CPR (3d) 161 (Ont CA), leave to appeal to SCC refused (1999), 236 NR 396 (note) (SCC)) contained an aside that since publicity rights are akin to intangible property, like copyright, they should be a descendible asset. The Gould court did not set a term of protection after death, but suggested something similar to copyright (ie, life of the person, plus 50 years). A 2004 Nova Scotia court similarly held that "property rights may attach to the goodwill generated by a celebrity's personality and that...