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Case Name: Krouse v. Chrysler Canada Ltd. et al. Key Words: Privacy, Tortious use of photograph, unjust enrichment Country: CANADA Citation: 5 C.P.R. (2d) 30; 1971 C.P.R. LEXIS 317 Date: November 1, 1971 Case Number: Importance: A land mark judgement based on the property right to endorsement. This right of publicity to be effective must be the subject of an exclusive grant. Facts: Plaintiff Robert ‘Bobby’ Krouse was a professional football player, and at the material time and for some years previously, had played for the Hamilton Tiger-Cats Football Club. Whenever he played, he wore in large letters on his back, the number ‘14’. To many football fans, No. 14 and Bobby Krouse were synonymous. Chrysler Canada Limited was a well-known manufacturer of automobiles and Grant Advertising (of Canada) Limited, its advertising agent. The action arose out of the use by the defendant of the plaintiff's photograph without his consent in an ingenious advertising program in 1969 of what was known as the "Plymouth Pro Football Spotter" to promote the sale of cars. The plaintiff based his claim for relief on various grounds including, invasion of privacy, appropriation of plaintiff's identity for commercial purposes without his consent or compensation, breach of confidence, unjust enrichment, passing off, putting the plaintiff in breach of contract thereby subjecting him to potential litigation. Decision and Reasoning: Commercial advertising power of professional athletes Professional athletes possess considerable commercial advertising power in the media and advertising age. Both sponsors and their advertising agencies recognise that there is something valuable in connecting in the public mind, a famous figure with a given product. Somehow this connection is thought to enhance the product, to make it more saleable. Professional reputation is the means of acquiring wealth, and is the same as wealth itself. The professional athlete effectively performs in a dual capacity. As he improves his athletic ability, he enhances his advertising value. There is a direct relationship between the quality of his professional work and his ability to command advertisers' money. Advertising power is not an accident, but the result of hard, and usually superlative work. Appropriation of advertising power The Court observed that it was obvious from the copy, the colour and the design of the picture that Chrysler was using the Spotter in an attempt to identify itself with football. The picture was a crucial piece of the identification process- Krouse was the focal point of it, and the only identifiable figure in the picture. Whether intended or not, Krouse was used in the advertisement of the cars. His identity could not be severed from the ad qualities of the Spotter and treated as mere flavouring. The picture, and he, was essential elements of the ad. The essence of the cause of action is identification. For whatever reasons, a given name becomes associated in the public mind as being of superior quality, and the person or corporation whose name it is, is entitled to the full and exclusive benefit of this public identification. It does not matter whether the goods are superior, and it is no defence to a passing-off action that the usurper's goods are of lower price and higher quality. The entity whose rights are violated is the entity which has created and benefits from the public identification. For whatever reason, the endorsement of a professional athlete is thought to
enhance the saleability of consumer goods. To this extent it is the public
identification with the athlete that is commercially crucial, and it is the
athlete whose rights are involved. Since the plaintiff was unable to prove that his ability to get rival endorsements had been diminished, damages were reduced to the level of unjust enrichment. He was entitled to be compensated though for the wrongful appropriation of his property right in using his picture for advertising purposes. General damages to the tune of
$1000 were awarded taking into account that the defendants had acted in good
faith based on ignorance, albeit high-handedly in treating the rights of others. Result: Judgement for plaintiff Case Name: Athans v. Canadian Adventure Camps Ltd Key Words: Appropriation of personality, passing off Country: CANADA Citation: 17 O.R. (2d) 425; 1977 Ont. Rep. LEXIS 86 Date: November 9, 1977 Case Number: Importance: There is a proprietary right in the exclusive marketing for gain of a person’s personality, image and name that the law entitles him to protect if invaded. The law also prescribes in appropriate circumstances remedy in the form of injunction or damages when a case for the wrongful invasion of the right is made out. Facts: The plaintiff Athans is a professional athlete who has achieved the highest recognition for his prowess in water-skiing, both in Canada and internationally. He promotes his image, expertise, and personality commercially. The defendant, Canadian Adventure Camps Limited (C.A.C.), operates a summer camp for children. In 1975, the camp opened for its first season on a commercial basis, featuring water-skiing as an important part of its programme. For promotional purposes, it published a brochure and an advertisement containing a graphic representation of a water-skier, which the plaintiff contended was identifiable with him and used for commercial purposes without his consent. The drawings used in the brochure and the advertisement were based upon a photograph of the plaintiff in the act of water-skiing. The plaintiff claimed damages for passing off, for wrongful appropriation of his personality; and, in the alternative, compensation for use of his image and personality. Decision and Reasoning: Passing Off The action of passing off constitutes the sale of goods or the carrying on of a business under a name, mark, or description in such a manner as to mislead the public into believing that the merchandise or the business is that of another person. The law is thus designed to protect traders against such a form of unfair competition, which consists of acquiring for oneself by means of false or misleading devices the benefit of the reputation already achieved by a rival trader. In a typical case, a defendant would seek to acquire this benefit by passing off his goods as the goods of the plaintiff. In the instant case, the Court held that no case for passing off was made out. It stated that the use of the line drawings in the advertisement and the brochure were, on the balance of probability not likely to give rise to confusion between the plaintiff's and the defendant’s (C.A.C.) businesses. It was highly improbable that the relevant segments of the public who would have read the advertisement and the brochure would have associated the business of the defendant (C.A.C.) with that of the plaintiff athlete (Athans) Wrongful appropriation of personality Athans had a proprietary right in the exclusive marketing for gain of his personality, image and name that the law entitled him to protect if invaded. The law also prescribes in appropriate circumstances remedy in the form of injunction or damages when a case for the wrongful invasion of the right is made out. The Court made it clear that in this case, that had the defendants identified the promotional drawings as representing Athans, or incorporated in the printed copy language stating or implying that he was endorsing, sponsoring, or participating in the camp's activities, it would have unhesitatingly found for the plaintiff on the above ground. However, it still remained that the defendants had used the plaintiff’s image for their commercial advantage. This image was that which Athans associated with himself (through adoption of photographs and representations) as his distinctive indicia. He used them as an essential component in the marketing of his personality, which he had an exclusive right to do. The commercial use of his representational image by the defendants without his consent constituted an invasion and pro tanto an impairment of his exclusive right to market his personality. This constituted an aspect of the tort of appropriation of personality. Result: Judgment for Plaintiff against both defendants, jointly and severally, for the amount of $ 500. Case Name: Gould Estate v Stoddart Publishing Key Words: misappropriation of personality, public interest Country: Canada Citation: [1996] O.J. No. 3288 Date: September 26, 1996. Case Number: - Importance: Facts: In 1956, Glenn Gould, then a young concert pianist, was interviewed by Jock Carroll for an article in Weekend Magazine. They talked on a variety of occasions and in numerous venues. During this time, Carroll took approximately 400 photographs of Gould and copious notes, including some tape-recordings, of their conversations. Certain of these photographs and comments of Gould were used in the magazine article. Nearly forty years later, in 1995, Carroll published through Stoddart Publishing Co. Limited a book entitled "Glenn Gould: Some Portraits of the Artist as a Young Man". Gould had died in 1982 and Gould's Estate did not authorize its publication or receive royalties from the book. The book made use of over 70 of the original 400 photographs and drew extensively on the conversations that Carroll recorded in1956. The text is largely comprised of extracts from these conversations. That Carroll is the owner of the copyright in the photographs is undisputed. Gould's Estate filed the action seeking damages claiming (i) that use of the photographs amounted to the tort of appropriation of personality, the cause of action for which could be asserted by the Estate; and (ii) that copyright in the oral conversations recorded by Carroll rested with Gould (now his Estate) and as such may not be used without the permission of the Estate. Decision and Reasoning: The Tort of Appropriation of Personality The Court reviewed the case law relating to the common law tort of misappropriation of personality beginning with Krouse v Chrysler, Athans v. Canadian Adventure Camps Ltd., Joseph v. Daniels. On the basis of the reasoning in those cases, the Court went on to conclude, on a contextual basis that the tort of appropriation of personality is restricted to endorsement type situations. (Para 14) The Public Interest and the ‘Sales v Subject’ Distinction In articulating the tort of misappropriation of personality, regard has to be given to the public interest. (Para 15) freedom of expression is indeed a compelling and reasonably coherent basis for defining the ‘obvious need’ for limits. (Para 18) Courts have drawn the ‘sales v subject’ distinction to simplify matters. Sales constitute commercial exploitation and invoke the tort of appropriation of personality. Here, while the identity of the celebrity is merely being used in some fashion, the activity is not about the celebrity. This as opposed to situations in which the celebrity is the actual ‘subject’ of the work. (Para 19) Because of the public interest in knowing more about Gould, the book falls into the protected category and there cannot be said to be any right of personality in Gould that as been unlawfully appropriated by the defendants. Survivability of the Right of Publicity As to the issue whether the tort of appropriation of personality survives the death of the individual, modern trends have so evidenced. (Para 21). The right of publicity protects the commercial value of a person’s celebrity status. The right of publicity, being a form of intangible property under Ontario law akin to copyright, should descend to the celebrity's heirs. Reputation and fame can be a capital asset that one nurtures and may choose to exploit and it may have a value much greater than any tangible property. There is no reason why such an asset should not be devisable to heirs under s. 2 of the Succession Law Reform Act, R.S.O. 1990, c. S.26. (Paras 23-24) Result: Summary judgement dismissing both actions. TopCase Name: Gould Estate v Stoddart Publishing Key Words: misappropriation of personality, journalistic privileges Country: Canada Citation: (1998), 39 O.R. (3d) 545; (1998), 161 D.L.R. (4th) 321; (1998), 80 C.P.R. (3d) 161; (1998), 114 O.A.C. 178 Date: May 6th 1998 Case Number: - C25822; C25823 Importance: Once a person consents without restriction to being the subject matter of a journalistic piece, he cannot assert any proprietary interest in the final product nor can he complain about any further reproduction of the photographs nor limit the author of the journalistic piece from writing further about him. Facts: In 1956, Glenn Gould, then a young concert pianist, was interviewed by Jock Carroll for an article in Weekend Magazine. They talked on a variety of occasions and in numerous venues. During this time, Carroll took approximately 400 photographs of Gould and copious notes, including some tape-recordings, of their conversations. Certain of these photographs and comments of Gould were used in the magazine article. Nearly forty years later, in 1995, Carroll published through Stoddart Publishing Co. Limited a book entitled "Glenn Gould: Some Portraits of the Artist as a Young Man". Gould had died in 1982 and Gould's Estate did not authorize its publication or receive royalties from the book. The book made use of over 70 of the original 400 photographs and drew extensively on the conversations that Carroll recorded in1956. The text is largely comprised of extracts from these conversations. That Carroll is the owner of the copyright in the photographs is undisputed. Gould's Estate filed the action seeking damages claiming (i) that use of the photographs amounted to the tort of appropriation of personality, the cause of action for which could be asserted by the Estate; and (ii) that copyright in the oral conversations recorded by Carroll rested with Gould (now his Estate) and as such may not be used without the permission of the Estate. Summary judgements were given at trial holding that there was no basis in law for the actions. Hence the appeal. Decision and Reasoning: At issue in the appeal was whether respondent Carroll was entitled, for his own exclusive benefit, to later exploit commercially the photographs he took of Gould in 1956 and to use his notes and tapes of his interviews at that time to write other articles on Gould notwithstanding that such later use of the photographs and interviews had never been discussed with or agreed to by Gould or his successors or assigns. Misappropriation of Personality vs. Conventional principles of copyright Misappropriation of personality had been the principal focus of the motions judge in his ruling. Finlayson J.A, sought to differ in his approach to the matter. While he agreed with the motion judge’s ultimate disposition, he went on to decide the matter according to the conventional principles of copyright. He justified this by saying that it was not necessary to decide the issues in this case on the basis of the relatively new development in tort of appropriation of personality when the case so clearly sounded in intellectual property. And in contrast to the motions judge’s addressal of Gould's right to preserve his privacy and exploit commercially his own fame, he addressed the proprietary rights Carroll had in the photographs and other material created by Carroll in 1956 and again in 1995. (Para 5) There is no onus on Carroll in the instant case. Gould clearly consented to the photographs being taken and to the continuing interviews by Carroll. There was no contract between them, express or implied. As to the issue whether Gould or his agent imposed any limitation on that consent, there was none. (Para 16) Carroll had exclusive proprietary rights in the photographs and he became the exclusive owner of the copyright in the text and captions to the photographs by virtue of being the author. In these circumstances, it appears that the onus is upon Gould and those who now represent him to show that the copyright in all the photographs, tape recordings and notes was retained by Gould or, at the very least, that Carroll's copyrights expired once the article in question was published in Weekend Magazine. (Para 17) The owner of the negatives is the author and owner of the copyright in the photographs and the author of the written material in the book is the owner of the copyright in that written material. The subject of the photographs and the written materials has no proprietary interest whatsoever unless he or she had obtained an interest by express contract or implied agreement with the author. Looked at in this light, the concept of appropriation of personality has no application. Once Gould consented, without restriction, to be the subject matter of a journalistic piece, he cannot assert any proprietary interest in the final product nor can he complain about any further reproduction of the photographs nor limit the author of the journalistic piece from writing further about him.( Para 26) Result: Appeal dismissed with costs TopCase Name: Horton v. Tim Donut Ltd. et al. Key Words: Unlawful appropriation of personality, public interest, freedom of expression Country: CANADA Citation: 75 C.P.R. (3d) 451; 1997 C.P.R. LEXIS 1222 Date: January 20, 1997; February 6, 1997 Case Number: 95-CU-86126 Importance: There is no unlawful appropriation of personality where the predominant purpose of displaying portrait is charitable and commemorative and there is public interest in knowing more about individual. Facts: The plaintiff was the widow and beneficiary of the estate of a famous hockey player who died in 1974. Following the player's death, in 1991, a portrait of the player was commissioned as part of a campaign to support a children's foundation established by the defendant company. In preparing the portrait, the artist used a number of slides of the player, provided to him by a professional photographer. The portrait of the player was completed in April, 1992, and reproduced in limited edition prints which were made available for sale to support the charitable foundation. The prints were also displayed in the defendant company's stores. Three years later, the plaintiff commenced an action for unlawful appropriation of commercial personality and copyright infringement. In response, the defendants brought a motion for summary judgment on the ground that there was no genuine issue for trial. In the alternative, the defendants sought an order permanently staying the action or for security for costs. Decision and Reasoning: Basis of tort of unlawful appropriation of personality The tort of unlawful appropriation of personality is based on the usurpation of the celebrity's right to control and market his own image. There can be no interference with the right where the celebrity gives over the right. Representations of the hockey player were part of the early marketing initiatives of the company. By these actions, the defendant company acquired the personality rights of the player. Therefore, the hanging of the portrait in the defendant company's stores could not amount to an unlawful appropriation of the deceased player's personality. The Public Interest When the activity can be broadly described as falling within the category of public interest, the legal protection of the individual gives way to the larger societal interest in freedom of expression. In this case, the predominant purpose of the portrait was charitable and commemorative and there was a public interest in knowing more about the individual. As such, the portrait fell into the protected category and there was no right of personality which had been unlawfully appropriated. In this regard, the purpose of the portrayal in question must be examined to determine if it predominantly serves a social function valued by the protection of free speech. If the portrayal merely serves the purpose of contributing information, which is not false or defamatory, to the public debate of political or social issues or of providing the free expression of creative talent which contributes to society's cultural enrichment, then the portrayal generally will be immune from liability. If however, the portrayal functions primarily as a means of commercial exploitation, then such immunity will not be granted. Result: Motion for summary judgement granted Case Name: Joseph v. Daniels Key Words: Misappropriation of personality, Privacy, Use of photograph Country: CANADA Citation: 1986 A.C.W.S.J. LEXIS 32655; 1986 A.C.W.S.J. 465962; 39 A.C.W.S. (2d) 471 Date: July 4, 1986, Decided Case Number: Importance: The essential element of the tort of wrongful appropriation of personality is the unauthorized use of name or likeness of person as symbol of his identity. If the photograph is not recognizable, then no claim would lie under the Privacy Act (B.C.), though the subject of the photograph might be entitled to fees for extra usage. Facts: This was an action for damages for wrongful misappropriation of personality. An amateur body builder agreed to pose for photograph to be used in magazine and was paid $50. The Photographer, without informing him, used the photograph on posters and greeting cards. Decision and Reasoning: Misappropriation of Personality It is the unauthorized use of a name or likeness of a person as a symbol of his identity that constitutes the essential element of the cause of action. The cause of action is proprietary in nature and the interest protected is that of the individual in the exclusive use of his own identity insofar as it is represented by his name, reputation, likeness or other value. For the defendant to be found liable he must take advantage of the name, reputation, likeness, or some other component of the plaintiff's individuality or personality which the viewer associates or identifies with the plaintiff. (Para 15) By using the model's torso only, the defendant photographer deliberately designed his composition to avoid any reference to the identity of the person. The representations or values could not be identified with the plaintiff by a viewer of the photograph. Therefore, it could be concluded that the defendant had not used in his photographic composition any proprietary interest associated by the public with the plaintiff's individuality. (Para 16) Breach of Privacy According to the provisions of the Privacy Act, R.S.B.C. 1979, c. 336, violation of privacy is actionable tort. It also provides that the nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, due regard being given to the lawful interests of others. In determining whether the act or conduct of a person is a violation of another's privacy, regard shall be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties. The Act also provides in s.3, that
it is a tort, actionable without proof of damage, for a person to use the name
or portrait of another for the purpose of advertising or promoting the sale of,
or other trading in, property or services, unless that other, or a person
entitled to consent on his behalf, consents to the use for that
purpose. However, a person is not liable to another for the above referred use
unless the plaintiff is: Result: Dismissed. Case Name: Dowell et al. v. Mengen Institute et al. Key Words: Appropriation of personality, Balance of convenience Country: CANADA Citation: 72 C.P.R. (2d) 238; 1983 C.P.R. LEXIS 636 Date: May 27, 1983 Case Number: - Importance: Authorization must be treated as analogous to a negative covenant, and courts of law acting on well recognized principles of equity, will deny injunctive relief, particularly of an interim nature, to litigants who seek to set aside the effect of what they have covenanted not to do. Facts: The applicants sought an interlocutory injunction to restrain the screening of a film of a conference conducted on unemployment, in which they participated, on the ground that it was injurious to them in portraying them to be emotional and in one case seditious. The applicants had signed an authorization to one of the respondents (the Mengen Institute) “to portray me, use my words, name, likeness and story in both documentary and fictionalized films, tapes and written works arising from or suggested by the above Conference.” The action was based upon the tort of appropriation of personality. Two of the applicants had sought to withdraw the authorization after the sessions had been completed, the filming undertaken and the programme wound up. As at the time of the application no one had seen what was proposed to be screened by the defendants in their capacity as producers and broadcasters, the application was brought ‘quia timet.’ Decision and Reasoning: Irreparable Harm and Balance of Convenience In matters of interlocutory
injunctions, it is pre-requisite to relief to allege irreparable harm. The Court
reiterated that applicants had to prove that there was an imminent danger of
very substantial damage, or further damage, e.g., by showing that the threatened
act was attended with extreme probability of irreparable injury to the property
of the applicants including also danger to their existence. In the instant case,
none of this was shown. Therefore the Court found the balance of convenience to
be tipped in favour of the respondents- they having expended much time and money
in the course of their production of the film. While recognising that common law contemplated the appropriation of one’s personality as a tort, the Court highlighted one of the central features of the tort. In every case on appropriation of personality, consent (e.g. whether permission has either not been sought or refused) is a crucial factor. The applicants here had given their consent in explicit and considered terms to the respondents in the form of the authorisation they had signed. The result is that this authorization must be treated as analogous to a negative covenant, and courts of law acting on well recognized principles of equity, have denied injunctive relief, particularly of an interim nature, to litigants who seek to set aside the effect of what they have covenanted not to do. In this case the effect of the authorization was a covenant not to do what they were seeking to do, i.e., preventing the respondents from proceeding along lines of conduct which they had been expressly authorized to proceed along, by the applicants themselves. Consequently, the application was dismissed. Result: Application for an interlocutory injunction dismissed. Case Name: Baron Philippe de Rothschild, S.A. v. La Casa de Habana Inc. Key Words: Appropriation of personality, Commercial exploitation of name/ likeness Country: CANADA Citation: 19 C.P.R. (3d) 114; 1987 C.P.R. LEXIS 1390 Date: November 25, 1987 Case Number: - Importance: One cannot commercially exploit another’s name or likeness without his permission. Facts: The applicants (De Rothschild) sought an interlocutory injunction to restrain the respondents (La Casa de Habana Inc.) from using a sign to identify their commercial operation with the words ‘Rothschild at Yorkville.’ Decision and Reasoning: La Casa de Habana Inc. had commenced operation on Yorkville Ave. in February, 1987, and erected a sign ‘Rothschild at Yorkville’ operated and owned by Thomas Hinds, a cigar merchant. Hinds was aware of the Rothschild family and that it was synonymous with wealth and luxury. He adopted the Rothschild name to indicate quality and give prestige to his shop. The only investment Hinds had in the name Rothschild at Yorkville was a sign which cost $ 2,500. The Court found that the tort of appropriation of personality had been committed. One cannot commercially exploit another's name or likeness without his permission. Result: Application granted. Case Name: Les Editions Vice Versa v Aubry Key Words: privacy, right to image, freedom of expression, artistic expression Country: CANADA Citation: [1998] 1 S.C.R. 591 Date: April 9, 1998 Case Number: - 25579 Importance: Damages can be awarded if an identifiable picture of a person is published without permission. It is of no consequence that the photo is not reprehensible or has not caused injury to reputation. The Supreme Court of Canada while finding that the woman’s right to protect her image was more important than the paper’s right to publish the photo without her permission, showed how the individual’s right to privacy could take precedence over artistic and journalistic freedom of expression. Facts: An action in civil liability had been brought by Aubry( respondent) against the appellants( a photographer and the publisher of a magazine) for taking and publishing in a magazine dedicated to the arts, without consent, a photograph showing the respondent, then aged 17, sitting on the steps of a building. At trial, the judge recognized that the unauthorized publication of the photograph constituted a fault and ordered the appellants to pay $2,000 jointly and severally. The majority of the Court of Appeal affirmed that decision. Decision and Reasoning: Right to one’s Image Quebec courts have applied the principles of civil liability to allow compensation for the prejudice resulting from the use of a person's image without his or her consent. The Court in the instant case was of the view that the right to privacy protects, inter alia, the "narrow sphere of personal autonomy within which inherently private choices are made." Furthermore, this right certainly includes a person's right to his or her image. (Paras 20-23) The dissemination of the respondent's image constituted a violation of her privacy and of her right to her image. To appropriate another person's image without his or her consent to include it in a publication constitutes a fault. A reasonable person would have been more diligent and would at least have tried to obtain the respondent's consent to the publication of her photograph. The appellants did not do everything necessary to avoid infringing the respondent's rights. In this regard, a parallel can be drawn with the obligation of diligence the news media must meet in gathering information in order to avoid liability. (Paras 23, 53) It is possible for the rights inherent in the protection of privacy to be infringed even though the published image is in no way reprehensible and has not injured the person's reputation. (Para 54) Public Interest The right to privacy is not absolute. It is subject to a series of limits, and its application requires a balancing with other fundamental rights, such as the right to freedom of expression and the public's right to information which are guaranteed by Section 44 of the Quebec Charter. (Paras 25, 55-57) The content of the concept of public interest depends on the nature of the information conveyed by the image and on the situation of the parties involved. On the other hand, it must be balanced against the reasonable expectation of privacy of the person whose image is reproduced and, generally, against the severity of the infringement of the parties' rights. (Para 26) It is possible for the public interest to justify the dissemination of the image of a person who is in a crowd or is at the scene of an important event in a purely incidental manner. In this case, the public interest does not justify the appellants' fault. Consent of the respondent could have been obtained but was not. (Para 27, 60) Damage It is necessary to establish prejudice suffered- be it extra-patrimonial and/or patrimonial. Where extra-patrimonial damages are concerned, the infringement of a right guaranteed by the Quebec Charter is in itself insufficient to establish that damage has been sustained. Nor is an award of symbolic damages justified when the courts wish to punish the infringement of a right that will, in most cases, result in minimal injury. This would be contrary to the principles of civil responsibility. (Para 67-68). Damages must be proven. Result: Appeal dismissed with costs. Case Name: Dubrulle v. Dubrulle French Culinary School Ltd. et al Key Words: misappropriation of personality, privacy Country: Canada Citation: 2000 BCSC 1193, (2000) (CanLII), 8 C.P.R. (4th) 180 Date: August 8th, 2000 Case Number: - C982262 Importance: For the tort of misappropriation of personality to apply it must be shown that the defendant is taking advantage of the name, reputation, likeness or some other component of the plaintiff’s individuality or personality which the viewer associates or identifies with the plaintiff. An entity is free to use its own name and trade on its own reputation which it has independently built. Facts: This is an action in which the plaintiff (Pierre Dubrulle) sought an injunction restraining the use of the name ‘Dubrulle.’ In 1983 he founded the “Pierre Dubrulle Culinary School,” which he operated through a company, Dubec Gourmet Cuisine Ltd. (“Dubec”). Diana Becker worked with him at the school until 1984 when Ms. Becker and Dubrulle incorporated Pierre Dubrulle Culinary School Ltd. Pierre Dubrulle Culinary School Ltd. (“the company”), incorporated in 1984, carried on the business of Pierre Dubrulle Culinary School. Both the school and the company acquired their names with the knowledge and consent of Dubrulle. On November 25, 1988, Dubec sold and Becker purchased one-half of Dubec’s shares in the company. On January 19, 1989, Dubrulle, Becker and Dubec entered into another agreement wherein Becker purchased Dubec’s remaining shares in the company. In 1991, Becker caused the name of the school to be changed to Dubrulle French Culinary School and caused the name of the company to be changed to Dubrulle French Culinary School Ltd. The school used the name “Dubrulle French Culinary School Ltd.” in connection with all of its legal documents but since approximately April 1997, had carried on business as Dubrulle International Culinary and Hotel Institute of Canada. Dubrulle’s sued on the basis of misappropriation of personality, violation of his rights under the Privacy Act, R.S.B.C. 1996, c. 373 and adoption of mark that falsely suggested a connection with Dubrulle contrary to Trademarks Act, R.S.C. 1985, c. T-13. Decision and Reasoning: Misappropriation of personality Common law does recognise a claim in tort for the wrongful appropriation by another of one’s personality. It is the unauthorized use of a name or likeness of a person as a symbol of his identity that constitutes the essential element of the cause of action. The cause of action is proprietary in nature and the interest protected is that of the individual in the exclusive use of his own identity insofar as it is represented by his name, reputation, likeness or other value. For the defendant to be found liable, he must take advantage of the name, reputation, likeness or some other component of the plaintiff’s individuality or personality which the
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