Whose Public Persona? - The Common Law Right of Publicity

The corporate message was clear - use this service associated with the successful coach and athlete, and you too will be successful. There was no doubt that the sporting image was powerful, and that the credibility of the coach and athlete duo reinforced the sponsor's image as a committed provider of quality services. Unfortunately, there was a small problem - neither the coach nor the athlete had ever consented to have their images used in this particular manner.

While some privacy rights are contained in provincial statutes and human rights legislation in Canada, the common law tort of misappropriation of personality is relatively new. Also known as the "right of publicity", this tort is based on the legal principle that an individual has the exclusive right to market his or her image for financial gain. This issue is increasingly important in the sporting world, and there have been numerous cases of conflict between the legitimate marketing needs of sport administrators and event organizers, and the exclusive rights of athletes and coaches to market their personalities for their own gain.

In Canada, the scope of this tort is evolving and two recent cases illustrate where the law may be heading.

Aubry v. Vice-Versa was decided recently by the Supreme Court of Canada pursuant to unique provisions of Quebec's civil law and the Quebec Charter. These statutes expressly recognize a person's right to privacy in Quebec. In this case, a photo was taken of a young woman sitting in a busy public place; the photo was subsequently published in a newspaper. The Supreme Court ruled that damages could be awarded if an identifiable picture is published without permission. It also decided, to the surprise of many, that the right of privacy includes the ability to control the use of one's image even if the photo is flattering and not damaging to a person's reputation. The Court balanced two sets of competing rights and found that the woman's right to protect her image (even when no real damages were proven) was more important than the paper's right to publish the photo without her permission. While there is now debate about the impact this case will have in the remaining common law provinces of Canada, it is certain that Canada's top court favoured the individual's right to privacy over artistic and journalistic freedom of expression.

A similar balancing act was performed in the recent Ontario case of Gould Estate v. Stoddart Publishing. The estate of the late pianist Glenn Gould tried to prevent the publication of a book about Gould which included photographs and accompanying text. The Court concluded that the expanding scope of the tort should be constrained, on public policy grounds, by balancing the public's interest in free expression against the individual's right to exclusively exploit his or her personality.

In the Gould case, the Court also considered whether "publicity rights" are more akin to property rights than to personal rights such as privacy or libel. This issue is important as property rights survive a person's death while personal rights do not (think of the implications for the Estate of Diana, Princess of Wales). If the basis of the tort is privacy, then individuals who are not yet well known to the public (for example, up-and-coming athletes) will have a much easier time proving they have been damaged. On the other hand, if the basis of the tort is property, well-recognized persons will be able to prove their losses more easily than those individuals who remain unknown.

In the Gould case, the court characterized the tort as a property right and introduced a distinction between "sales" and "subject" that had not been expressed before. A "sale" is use of an individual's personality for a third party's commercial purposes. Such use without permission will violate an individual's privacy rights. In contrast, when the individual is the actual "subject" of the work (as he or she would be in a biography, for example) and the work attempts to provide the public with insight about that individual's life, then publicity rights would not have been violated. The court decided that the book about Glenn Gould could be published as the artist was essentially the "subject" of it, and the public had an overriding right to read this material.

This decision was appealed to the Ontario Court of Appeal, which upheld the decision but did not comment on the lower court's distinction between sales and subject, basing its decision on traditional principles of copyright ownership instead. As a result, it is impossible to state with certainty the scope of publicity rights in the common law provinces.

However, the following is a conservative expression of the extent of protection this tort can offer an individual such as an athlete or coach. The tort of misappropriation of personality is legal recognition of a person's exclusive right to use or exploit his or her persona. The tort can be invoked when

  • there is an element of commercial exploitation of a person's personality (this could be that person's figure, profile, face, name, voice, or stance - anything that is recognizable to the viewing public)
  • the person is clearly identifiable in the medium used
  • the person does not consent to this use
  • damages are proven

Given the uncertainties raised here and the patchwork quilt of privacy and human rights legislation in effect across Canada, a coach, athlete or sport organization should be prepared to protect their legitimate interests by:

  • Ensuring that written consents are signed in every sponsorship, marketing or endorsement situation, where there is clearly a commercial benefit to a third party
  • Making the consents specific with reference to the image, the permitted uses, the medium and the time frame for use
  • Expressly excluding in writing any images that are not to be made public or that are not to be used in certain ways

Coaches and athletes should also be aware that the two exceptions to the tort of misappropriation of personality are news (this means that a story about a sporting event can include photographs of participants, including coaches and athletes) and satire.

As a final word of caution, if you find yourself in a situation where you are unsure if written consent is needed, consider obtaining professional advice to avoid the cost and repercussions of getting it wrong.

Originally published: Coaches Report (1999) Vol. 5(4)

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