International Protection Can Be Even More Problematic

AuthorWeston Anson
Pages87-104
87
International Protection Can
Be Even More Problematic
Contributed by Michelle V. Evenson
Research Contributions by Stephanie Ferguson
Just as not every state in North America recognizes the right of publicity, not every
country recognizes the right either—partially or in whole. Even when a jurisdiction rec-
ognizes such a right, there is no harmonization. For example, there is no such thing as
an EU right of publicity concept, protection, or statute. Thus, each country’s practices
must be looked at individually.
This chapter examines right of publicity law in ten jurisdictions that recognize the
right in some capacity. These jurisdictions all play varying roles in the international
market and include Canada, China, France, Germany, the Isle of Guernsey, Israel, Italy,
Japan, Switzerland, and the United Kingdom. One of the main points this book tries to
present is that there is no standard when it comes to right of publicity law, in the United
States or elsewhere. As such, it is important to demonstrate the wide variety of ways
in which it is recognized outside of the United States. This chapter doesn’t provide an
exhaustive list of important or groundbreaking jurisdictions; it is instead an illustrative
compilation of some of the countries with meaningful or cutting-edge policies and laws.
I. Canada
Canada’s right of publicity, known as personality rights, are limited and fall under pro-
vincial jurisdiction or common law, or both, as the tort of “misappropriation of person-
ality.”1 A violation occurs when there is an unauthorized commercial use of a person’s
1.
JOnatHan d. reicHman, rigHt Of pubLicity 2013,
at 17 (2012).
CHAPTER 6
ans50153_06_c06_087-104.indd 87 3/23/15 10:19 AM
88 Right of Publicity: Analysis, Valuation, and Current Legal Status
name, image, voice, or likeness.2 To bring a claim, a party must first show that the unau-
thorized use clearly identifies them.3
The earliest Canadian case concerning personality rights involved Robert “Bobby”
Krouse, a professional football player for the Hamilton Tiger Cats Football Club.4
Krouse brought a claim against Chrysler Canada Ltd. for unauthorized use of his photo
in a car advertisement. He based his claim on unjust enrichment, passing off, and inva-
sion of privacy among other things. The court determined the unauthorized use met the
threshold for passing off but not the threshold for defamation, copyright, or trademark
infringement. Instead the court found for the player on the basis of wrongful appro-
priation of Krouse’s rights to his image. Even though the court of appeal reversed the
decision, holding Krouse’s image was incidental to the advertisement, they did confirm
the existence of the tort of misappropriation of personality.5
Rights and remedies vary from province to province. Of the ten provinces, Mani-
toba, British Columbia, Saskatchewan, and Newfoundland have enacted privacy stat-
utes that provide a cause of action for the unauthorized appropriation of personality.6
British Columbia has the most inclusive legislation. There, the Privacy Act of British
Columbia states that using a person’s name or portrait for the purpose of advertising
without consent is a tort, and is actionable without proof of damage.7 The Privacy Act
of British Columbia does not recognize postmortem rights. An action or right of action
expires at the time the person whose name or portrait is allegedly used without permis-
sion dies.8
On the other hand, under Canadian common law, “personality” is generally consid-
ered a property right rather than a personal one; therefore it is it assignable, alienable,
and descendible on death.9 In addition, an individual has the exclusive right to license
his or her personality characteristics to others, whether for commercial gain or not. The
varying policies throughout Canada demonstrate just how inconsistent right of public-
ity or personality laws can be.
Another example of how Canadian publicity rights have developed is Athans v.
Canadian Adventure Camps Ltd. (Ontario, 1977).10 In this case, George Athans, a for-
mer Canadian world-champion water skier, brought a tort action of appropriation of
personality against a children’s summer camp. The camp used a well-known image of
Athans, which the skier frequently used for his own promotional purposes, in brochures.
The court held that a plaintiff’s proprietary right existed “in the exclusive marketing for
2. Id.
3. Id.
4. Id. (citing Krouse v. Chrysler Canada Ltd., (1973), 1 O.R. (2d) 225 (Ont. C.A.).
5. Id.
6. Amy M. Conroy, Protecting Your Personality Rights in Canada: A Matter of Property or
Privacy?, 1:1
uWO J .Leg. Stud.
3 (2012), http://ir.lib.uwo.ca/uwojls/vol1/iss1/3.
7. Privacy Act of British Columbia RSBC 1996, ch. 373, http://www.bclaws.ca/EPLibraries/bc
laws_new/document/ID/freeside/00_96373_01.
8. Id.
9.
reicHman,
supra note 1, at 20.
10. Id. at 18 (citing Athans v. Canadian Adventure Camps Ltd. (1977), 34 CPR (2d) 126, 136
(Ont HCJ)).
ans50153_06_c06_087-104.indd 88 3/23/15 10:19 AM

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