Name, Image and Likeness

Ontario protects the commercial value of a personality through the common law, not by statute. That makes the boundaries less certain than people assume.

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AppropriationEndorsementsAthansCommon Law

Personality Rights | Endorsements | Unauthorised Use | Remedies

The Ontario position.

There is no Ontario personality or privacy statute of general application. The field is common law.

Athans recognised a proprietary right in the exclusive marketing of one’s personality for gain.

The line runs between using someone to sell something and making them the subject of a work.

Whether the right survives death in Ontario is unsettled.

Quick Answer

Can someone use my photograph in an advertisement without my permission?

Generally not, where the use is commercial. Ontario recognises the tort of appropriation of personality at common law. Krouse v. Chrysler Canada Ltd. (1973), 1 O.R. (2d) 225 acknowledged the tort in principle, though the plaintiff lost on the facts because what had been appropriated was the association with football rather than his identity. Athans v. Canadian Adventure Camps Ltd. (1977), 17 O.R. (2d) 425 is the case that gives the tort its shape: a well known water skier whose image was reproduced as a line drawing in a camp brochure was held to have a proprietary right in the exclusive marketing for gain of his personality, and it did not matter that no one would have thought he personally endorsed the camp. What he lost was the ability to control and charge for the commercial use. The boundary, drawn at trial in Gould Estate v. Stoddart Publishing Co., is between using a personality to sell something and creating a work of which the personality is the legitimate subject.

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THE TORT

A Proprietary Right in Your Own Commercial Identity

Athans is the useful case because of how it characterises the right. It is proprietary: the exclusive right to market one’s personality for gain. That framing does two things. It removes the need to prove that anyone was deceived into thinking there was an endorsement, and it locates the loss in the missed licensing opportunity rather than in reputational harm.

That matters practically. A performer whose image is used without permission does not have to show that consumers believed they endorsed the product. They have to show that a commercially valuable attribute was used without consent, depriving them of the ability to control and charge for it.

It also means the claim is stronger where the person has an established commercial identity. Athans exploited his image commercially, which made the loss concrete. Someone with no commercial exploitation history has the same right in principle and a harder time valuing it.

THE LINE

Selling With a Personality, or Writing About One

The limiting principle was articulated at trial in Gould, in what is usually called the sales versus subject distinction. The tort targets uses where the personality is deployed to sell something else. It does not reach works of which the personality is the legitimate subject: biography, journalism, documentary, criticism.

One caution is worth stating, because this case is frequently described inaccurately. The Court of Appeal in Gould expressly declined to analyse the case as a misappropriation of personality claim at all and disposed of the appeal on conventional copyright grounds, holding that the photographer owned copyright in the photographs and text. So the sales versus subject reasoning is trial level, and the Court of Appeal did not endorse it.

In practice the distinction still describes where courts draw the line, and the difficult cases sit in between: a book cover, a documentary’s promotional campaign, a magazine using an image to sell issues. The use of an image to promote a work about the person is more defensible than the use of an image to promote an unrelated product.

SURVIVAL AFTER DEATH

Genuinely Unsettled in Ontario

This is an area where confident statements should be treated with suspicion. The trial judge in Gould suggested the right was descendible, relying on American authority. The Court of Appeal declined to go there, so there is no binding Ontario appellate authority either way.

The Trustee Act is the other half of the analysis. Section 38(1) permits an estate trustee to maintain an action for torts or injuries to the person or property of the deceased, excepting libel and slander. Because Athans characterises appropriation of personality as proprietary, it is more likely to fall within injuries to property and survive than a purely dignitary claim would be. That is an argument rather than a settled answer.

Section 38(3) then imposes a hard two year limit from the date of death, which is not subject to ordinary discoverability. So even on the best view of survival, an estate has a short and unforgiving window. Other provinces have taken different statutory routes, and in British Columbia the statutory claim is expressly extinguished on death, so cases from elsewhere should be read with care.

IN PRACTICE

Endorsement Agreements and Unauthorised Use

The productive side of this area is the agreement. An endorsement or ambassador agreement should define precisely what is licensed: which attributes, in which media, in which territories, for how long, and with what approval rights over how the material is used.

Approval rights are the term performers most often wish they had negotiated. Without them, a campaign may use an image in a context the person would never have agreed to, entirely within the licence granted.

Where use has already happened without permission, the practical remedies are an injunction to stop continuing use and damages measured by what a licence would have cost. A demand letter resolves a high proportion of these, because the user usually has no defence and an ongoing campaign is expensive to defend and easy to change.

Common Questions

Frequently Asked Questions

Do I have to prove people thought I endorsed the product?

No. Athans establishes a proprietary right in the exclusive marketing of one’s personality for gain, and the Court there accepted that the public would not have thought the plaintiff appeared in the brochure. The loss is the lost ability to control and charge for the commercial use.

Can a newspaper or documentary use my image without permission?

Generally yes where you are the legitimate subject of the work. The distinction drawn at trial in Gould is between using a personality to sell something else and creating a work about the person. Note the Court of Appeal decided that case on copyright grounds and did not adopt this reasoning, so it describes the practical line rather than binding authority.

Does the right survive death in Ontario?

It is unsettled. The trial judge in Gould suggested it does; the Court of Appeal declined to address it, so there is no binding appellate authority. If a claim survives, the Trustee Act imposes a hard two year limit from the date of death, which is not subject to discoverability.

Is there an Ontario statute protecting my image?

No statute of general application. Ontario’s protection is entirely common law, unlike several other provinces which have privacy statutes creating statutory torts covering name and likeness. Cases from those provinces turn on statutory language that does not exist here.

What should an endorsement agreement contain?

A precise definition of what is licensed: which attributes, media, territories and duration, together with approval rights over the material and a clear statement of what happens at expiry, including whether existing material may continue to run. Approval rights are the term most often omitted and most often regretted.

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Name, Image and Likeness

Can someone use my photograph in an advertisement without my permission?

Speak to an Entertainment Lawyer

A Proprietary Right in Your Own Commercial Identity

Selling With a Personality, or Writing About One

Genuinely Unsettled in Ontario

Endorsement Agreements and Unauthorised Use

Frequently Asked Questions

Discuss a Personality Rights Issue

Lexaltico LLP

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