Defamation (misappropriation of personality)

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  There must be a right infringed with resulting damage if there is to be a claim
  
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  This is not a case of passing off – the plaintiff and defendant must be competing in a common trade AND there must be misrepresentation for any business purpose as to the origin of goods or services which the defendant proposes to or does deal in or employs in the course of business – there is no confusion as to the origin, design or manufacturing of the Chrysler cars by using his likeness – no one would have been confused when purchasing the cars – no one would believe that this is an endorsement, either express or by implication or inference.
  
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  Although it does not exist in this case there could be situations where someone could recover based on the tort of the appropriation of one’s personality  There is a tort of misappropriation of personality but in this case the standard is not met – what Chrysler was actually advertising in the ads was football and not him specifically – the judge talks about how he is not really that good of a player so nobody reading it would have identified him as an endorser of the car separate from the overall team or league or whatever – also there was no commercial advantage accruing to Chrysler. In the world of professional sport and promotional publicity, some minor loss of privacy must be expected.
  
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  Policy – A right should not be recognized if it is going to favour the interests of a special class of people, while causing impediments to society and commerce at large.
  

Piper: What are the justifications that come into play in this tort?

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  Personality
  
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  Labour – in this case the argument that he is not a superstar so the standard is not met leads to the corollary that if he was a superstar you could argue that he had gone to a lot of work to construct his identity
  

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  The plaintiff has a “proprietary right in the exclusive marketing for gain of his personality, image and name” – however the picture was not enough to show a misappropriation of personality especially since he would be unlikely to be mistakenly associated personally with the camp without his name being shown with the picture and that few people know about his ‘pose’ – also, there were no damages/injury to the plaintiff.
  
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  The camp did not suggest and people did not understand that the plaintiff was supporting the camp so there was no misappropriation of personality
  
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  However, by seeking to use the plaintiff’s picture for its commercial gain, the defendant was guilty of infringing the plaintiff’s exclusive right to market his personality This is an aspect of the tort of appropriation of personality and entitles the plaintiff to compensation.
  
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  Arbitrary damages were awarded based on 10% of the cost of the number of brochures
  

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  There was no wrongful intention on the part of CAC
  
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  The court was not convinced that a cartoon with a pose that looked like someone that was known in such a limited sphere (e.g. water-skiing world) was actually use of his image
  
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  BUT – the court did find that although there was no damage to his reputation or his marketability there was an invasion of his right to exclusively market his personality
  
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  Piper – the court feels that there is something wrong here but can’t fit it into the box of “misappropriation of personality” – it is a more purposive analysis
  

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  Since the book contains a large amount of text and is about more than simply the “image” of G then there cannot be said to be a “right of personality” that has been unlawfully appropriated.
  
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  The court also held that it was in the public interest to know about Gould’s life and this is a main reason the book is protected.
  
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  The court also viewed it as being in Gould’s interest since he was an emerging artist and the more the public knew about him the better for his career
  
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  The court makes a sales v. subject distinction. Right of publicity is protected in the former but not in the latter. Freedom of expression is a limiting factor of the ‘right of publicity.’
  
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  sales - endorsement situation, where names and likeness are used for purposes of trade)
  
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  subject - biographies, works which provide an insight into the life of a celebrity)
  

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  This is different from the other cases because here the celebrity is not being used to push a product – in this case the product is information about a famous musician embodied in a book so there are benefits to the public beyond the interests of the parties – the opportunity to discuss people that are important to culture is important to society and to advancing public knowledge
  
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  Also, the claims to property stem from more than just the pictures but there is a lot of value added stuff like captions about his life that make the book about more than just the image/personality of Gould
  
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  Prof. Piper compared this case to INS v. AP – This is about drawing the line between private and public domain.
  

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  The judge in this case concludes that since Carroll (the writer/photographer) has a valid copyright in the pictures and text (‘transcriptions’ of conversations) then there is nothing more to decide. G cannot assert any proprietary interest in the final product nor complain about further reproduction b/c he consented without restrictions.
  

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  This is wrong though because it does not consider the issue of someone else holding a copyright over a part of the overall work.
  
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    Decided the case based upon intellectual property rights, instead of property, although this is based upon images and texts.
    
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    Not Necessary to explore privacy rights
    
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    Gould is the subject not the owner of the copyright
    
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    Carroll’s creation is entitled to protection; not Gould’s
    

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  The right of publicity can breached a number of ways, from the moment that the plaintiff’s identity has been appropriated, whether a celebrity’s name, likeness or other means have been used  A celebrity’s identity can be valued in the promotion of products. It is not important how the defendant has appropriated the plaintiff’s identity, but whether the defendant has done so.
  
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  Here, as in the Midler and Carson case, the public has been reminded of the celebrity without being shown a likeness of the person – Nonetheless, White’s identity is being used and there is an infringement of her rights.
  

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  The Eastwood test for the commercial appropriation of personality is that there must be: 1) use of the plaintiff’s identity; 2) appropriation of the plaintiff’s name or likeness to his disadvantage; 3) lack of consent; 4) resulting injury
  
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  The majority is wrong to dismiss the requirement of the use of a plaintiff’s likeness  In all the other cases (Midler and Carson), there was a use of a distinctive (unique) aspect of the plaintiff’s identity and that was the only thing shown so that one would think that the person whose identity was used was endorsing the product (e.g. you only heard a voice that sounded like Bette Midler but could not see anyone)
  
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  The attributes of White that are here considered to refer to her identity are not unique to her (long gown, blond hair, jewellery). They belong to many game-show hostesses (role she plays)  The ad did not depict White. It depicted a robot hosting Wheel of Fortune. The majority is overextending White’s rights.
  
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  “It is not how personality is appropriated, but whether it was appropriated.”
  
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  Everyone else had been compensated, but she had not.
  
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  The question here is if she’s identifiable beside the wheel of fortune.
  

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  The majority is making it an appropriation of a celebrity’s identity to simply evoke that person’s image in the public’s mind and this substantially expands IP rights with no good justification  Intellectual property rights must be balanced with the interests of the public. Otherwise creativity is stifled.
  
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  By protecting White from images of robots dressed like her posing on the Wheel of Fortune set, the majority is giving her an exclusive right in what she does for a living – it is not the blond wig or the evening gown that evokes the thought of Vanna White when you see the ad – it is the Wheel of Fortune set - if you showed a dog in place of the robot or a robot without the wig and gown you would still think of Vanna White. Right of publicity must be limited to specific physical characteristics.
  

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  Intellectual property gives celebrities the right to their original expression but allows others to build on the underlying ideas – according to dissent, this judgment significantly narrows the public right in favour of substantially expanding the private right (at ‘our’ expense).
  

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  The right to privacy includes the right to one’s image. Using the latter without a legitimate public interest is an invasion of privacy  This right is distinct from the right to one’s honour and reputation, though they may overlap.
  
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  These rights may come into conflict with freedom of expression – There are cases where one’s expectation of privacy will be limited: 1) for a person in public life; 2) when one is featured in a crowd in a public place; 3) when a person is incidentally present in a picture. But freedom of expression is not absolute.
  
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  However, Aubry was the main focus of the picture, if it was in a public place. It would have been possible to ask her permission. There was no public interest involved in the publication of this picture.
  
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  Piper – is the right to privacy constrained or unconstrained? – The photographer did not ask for permission but if he did he would have been covered
  

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  KL case where a picture of some guy’s torso was used for some publication – the court held that he was not identifiable and he was not famous so this was not a misappropriation of personality.
  

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  Reasoning – For a wrongful misappropriation of personality “it is the unauthorized use of the likeness of a person as a symbol of his identity that constitutes the essential element of the cause of action.”  One must take advantage of the plaintiff’s individuality – By featuring only the torso, the picture avoided any reference to the plaintiff’s identity and is therefore not problematic.
  

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  No one can use a person’s image without authorization. It is interference with human dignity and private life. A court can grant moral damages (under the Charter), even when there is no material prejudice.
  
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  The court felt that this was a “flagrant” violation of B’s rights by a “powerful company” that was “under an obligation to ensure that it was not using the photograph of a musician of Bogajewicz’ reputation without first ensuring it had his consent”
  
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  The court set more than merely nominal damages so that “it is not seen as an encouragement for Sony or any other company as powerful or of the same kind to interfere almost with impunity with the fundamental rights of some individuals”
  
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  Reasoning:
  
  1. 
     This was not an invasion of personality but it was an invasion of privacy under the QCRF
     
  2. 
     Piper question – how does his celebrity affect the analysis in this case?
     
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       The greater his celebrity/reputation the more he has to lose – he is being associated with that corporation