So you’re a photographer or videographer.
You’re walking down the street, hanging out in the park, observing the latest riot, or what have you.
And your eye catches an image so captivating, a person so interesting, that you think, “I have to get this shot. And I am going to use this shot to build my career.”
Recently, the Globe & Mail did a “9/11 in Focus” series on photographers (like the one in the above parable) who had caught completely captivating images on 9/11. Many of these photographers were professionals, some weren’t. The images in question were of people, who were not famous or well known, and generally hadn’t consented to their image being used commercially or otherwise. The photographers, all freelancers, decided that the images were powerful enough and many of them sold them to newspapers or licensed them to various media outlets. Although some of the people in the photos weren’t too happy, they didn’t make any claims, and the photographers walked away with images that, in many cases, jumpstarted their careers.
Simple right? Not so fast.
In Canada, there exists a common law tort of “appropriation of personality”, meaning, you can’t just go around taking pictures of people as a freelancer and use that image to generate some money.
Initially introduced in Krouse v. Chrysler Canada Ltd. (1973) 1 O.R. (2d) 225 (Ont. C.A.), the tort allows an individual to control the commercial use of his or her name, image, likeness, voice, reputation or other aspects of his or her identity. Over time, the question of whether one has appropriated the personality of another has evolved into a four part test: 1) the exploitation of the plaintiff’s identity was for a commercial purpose; 2) the exploitation clearly and primarily captured the plaintiff’s identity; 3) the plaintiff does not consent to the use of his or her personality; and, 4) the plaintiff suffers proven damages through tarnishing of reputation or interference with the plaintiff’s exclusive right to market his or her image.
In all cases, the plaintiff has not consented to the specific use and purpose of use of his or her likeness. Therefore, it is given as a part of the test for appropriation of personality that, to succeed, the plaintiff can not have given consent to the use of his or her identity.
Exploitation Must be for a Commercial Purpose
The test of whether an exploitation is for a commercial purpose was laid out in Gould Estate v. Stoddart Publishing Co., (1996) 30 O.R. (3d) 520 (Ont. Gen. Div.), in which the plaintiff, a famous pianist, was interviewed by Jock Carroll for a magazine. 40 years later, Carroll published a book through Stoddart using images and words attributed to Gould from that initial interview. As Gould had passed away, his estate sued Stoddart.
The trial judge outlined the “sales vs. subject” distinction, which asks whether the likeness was used in connection with the sale of consumer merchandise or solely for the purpose of trade, as opposed to if the likeness was used simply as the subject of the defendant’s work. In the latter, the defendant’s work would not infringe on the rights of the plaintiff; in the former, it would.
On that basis, the court held that the rights of Gould had not been infringed, as there was a public interest in knowing more about Canada’s musical talent, Gould serving as the subject of such a study. Since the primary purpose was not for commercial gain, the tort was not established.
In Aubry v. Editions Vice-Versa Inc.  1 S.C.R. 591, the court took a “private interest vs. public interest” approach. The plaintiff, a 14 year old, non-celebrity girl was photographed and her image was published without authorization. Contrasting the “sales vs. subject” approach in Gould, the court held that the privacy rights of the plaintiff were more important than the public’s right to information or freedom of expression: “the public’s interest in being informed is a concept that can be applied to determine whether impugned conduct oversteps the bounds of what is permitted.” In this case, it was clear the court believed that the private rights of the plaintiff were subordinate to the rights of the public to certain images or information.
Exploitation Must Clearly and Primarily Capture the Plaintiff
In Krouse, a famous football player sued Chrysler Canada for a promotional item distributed by Chrysler that depicted the plaintiff in his Hamilton Ti-Cat uniform. He claimed that the use of his image was an unfair exploitation of his personality to the advantage of Chrysler. The court disagreed and held that Chrysler was not liable, as the image of the plaintiff was incidental, and not the primary object of the photograph. Rather, the defendant had used the image to connote it’s product with football, and not to suggest that Mr. Krouse personally endorsed Chrysler.
Similarly, in Joseph v. Daniels, 1986 A.C.W.S.J. LEXIS 32655, the plaintiff, a bodybuilder, sued the defendant, a photographer, for appropriation of personality arising from the unauthorized use and sale of a photo depicting the plaintiff from the waist up, holding a kitten. Considering whether the photo clearly and primarily captured the plaintiff, the court held that since the photo only depicted the plaintiff from the waist up, a viewer would not be able to identify the plaintiff. Therefore, the exploitation did not clearly capture the plaintiff, and the tort was not established.
Damages Must be Proven through Tarnishing of Reputation or Denial of Exclusive Right to Market Personality
Contrast the Joseph decision with Athans v. Canadian Adventure Camps Ltd. et. al., (1977), 17 O.R. (2d) 425 (Ont. H.C.J.). In Athans, the plaintiff, a famous water skier, was depicted by the defendant in a promotional brochure. The photo used was one that was frequently used by Athans himself for promotional purposes. The court held that the parents of children who would send their kids to the defendant camp would not have recognized the image of Athans, and therefore, the image did not clearly capture the plaintiff. Nevertheless, the court awarded damages to Athans, as the camp had appropriated the plaintiff’s personality for the deliberate purpose of associating the plaintiff with the defendant camp, infringing on his exclusive right to market himself. This violation of his exclusive right constituted “an aspect of the tort of appropriation of personality”.
Athans therefore serves as a narrow exception to the general rules, wherein, even if the exploitation does not clearly depict the plaintiff, where the plaintiff has already marketed and charged for the use of the image and the use of the defendant would cause a commercial loss to the plaintiff, the plaintiff ought to be compensated for such loss and denial of exclusivity.
It’s clear from the case law discussed that, although there is a test by which we can ascertain whether one’s public image rights have been violated, this area of law continues to evolve (particular in regards to the use of names and likenesses on the ever-expanding Internet) it is clear that, when creating images embodying the likeness of another person, one ought to be careful, considerate, respectful of privacy, and most importantly, acting with the consent of the person who’s image is captured.