David Canton – for the London Free Press – Auguat 19, 2006
Read this on Canoe
The unauthorized use of a celebrity’s name, voice or image has become a major financial risk in the U.S. While Canadian courts are not known for awarding lucrative sums, we should seek the permission of a celebrity before using their “personality” for any commercial benefit.
The recent announcement Olympic gold medalist Ross Rebagliati is planning to sue the producers of the Whistler TV show, claiming it includes a character misappropriating his personality, may put this to the test.
The Missouri Court of Appeals upheld a $15 million jury verdict for former NHL tough-guy Tony Twist against the creator of the comic series Spawn for using Twist’s name for a violent mob boss character.
Twist sued Todd McFarlane on the basis the depiction of a villain using his name harmed his ability as a potential product endorser and broadcast personality when his playing career concluded.
Given that Twist’s only claim to fame was logging 1,121 penalty minutes in 382 NHL games, there’s room to argue the jury award was inflated. However, the American common law “right of publicity” grants an individual the right to protection against the unauthorized use of his or her name or likeness for profit.
The comparable law in Canada is the tort of “appropriation of personality.” While the law is not nearly as developed, cases have imposed a remedy against those who have used an individual’s name, likeness, voice or personality without consent.
A 1974 Canadian case –Krouse v. Chrysler Canada Inc. — involved a suit by a Hamilton Tiger-Cats football player against the car company for the use of his image. The Ontario Court of Appeal dismissed the action, ruling the plaintiff was not the primary feature of the photograph, with only his backside and jersey number visible.
In 1996, an Ontario trial court in Gould Estate v. Stoddart Publishing Co. confirmed in the absence of consent, the use of a celebrity’s personality for commercial benefit is forbidden. The court confirmed the use of an individual’s name or likeness for comment, news dissemination, educational purposes (such as a biography) or a parody is permitted. In short, Canadian courts have restricted the protection of one’s personality to endorsement situations.
In the Twist case, McFarlane brought a team of Hollywood fans who urged the court to yield to artistic expression; however, the Missouri appeals panel believed the “predominant purpose of the use of the name ‘Tony Twist’ was to sell comic books and related products and not to make an expressive comment about Twist the hockey player.” McFarlane’s lawyer has asserted his client intends to appeal on First Amendment grounds.
For a finding of appropriation of personality in Canada, three elements must be satisfied. The individual must be recognizable. The exploitation must capture the individual’s quintessence, or defining characteristics. Finally, the exploitation of the personality must have been done for commercial purposes.
While Canada’s version of the “right of publicity” may never develop to the point it resembles the hotly debated American law, the reality is the unauthorized use of an individual’s name, voice or likeness could be a costly mistake. The only sure way to avoid being sued is to negotiate for the rights to the personality. While the endorsement cost is never cheap, the cost will not be nearly as high as potential damages awarded if a high-profile figure decides to enforce his or her exclusive right to control the commercial use of their personality in the marketplace.
