Personality rights of deceased celebrities have been the subject of debate for many years due to the continued popularity of these individuals beyond their death. Recently, two events have sparked renewed discussions on the matter. The first was the announcement of the movie Finding Jack, which was set to star James Dean as the lead actor, 64 years after his death.[1] The second event, was the appearance of Peter Cushing in the movie Star Wars: Rogue One released in 2016,[2] which was released 22 years after his death and used digitally-repurposed-archive footage of Cushing by superimposing his face over another actor[3]. These events raise ethical and legal issues related to publicity, privacy, and intellectual property. This article will explore these issues through the lens of prior case law.
Personality rights of dead celebrities in Canada are worth billions of dollars, making the proper protection of these rights even more critical with the advent of deepfake technology and advanced special effects.[4] Intellectual property rights play a crucial role in ensuring that these rights are enforced even after a celebrity has passed away. The following cases illustrate this point.
In Canada, a person's image is protected by two legal parameters: 1) right of publicity and 2) privacy rights[5]. In the case of Gould Estate v Stoddart Publishing[6] (“Gould”), the main points of contention were breach of copyright and misappropriation of Glenn Gould's personality. Jock Carroll had interviewed Gould in the 1940s and wrote an article. After Gould's death, Carroll published a book with Stoddart Publishing, using remaining images and interview excerpts about Gould without permission from his estate. Gould's estate took legal action against the publisher and Carroll for the two aforementioned issues. The Ontario Superior Court held that the right of privacy is different from the right of publicity. The right of privacy is considered a personal tort, designed to protect an individual's dignity and peace of mind, while the right of publicity protects the commercial value of a person's celebrity status and is a form of intangible property, like copyright or patent, that is descendible.[7] The trial judge dismissed both claims and stated that copyright had not been breached as the interview was casual and not a lecture or dictation to Carroll, and therefore Gould had no copyright in the interview. The misappropriation of personality claim was also dismissed, as the Court stated that Gould's image was used as a subject of the book and not as an endorsement.
The case was appealed to the Ontario Court of Appeal (“ONCA”). ONCA upheld the trial decision and stated that the rights in the written work and the photograph of Glenn Gould were in Carroll’s name and refused to treat it as a matter of misappropriation of personality.[8] This was only a matter of intellectual property. ONCA reasoned that Carroll took the photographs, created the literary content and maintained these rights. As a result, when Carroll wrote the book and used the photographs he had taken of Glenn Gould, he was entitled to do so, as the copyright was his. ONCA relied upon several decisions, such as: Pro Arts Inc v Campus Crafts Holdings Ltd,[9] where it was held that technical labour involved in producing a photograph is sufficient to accord it copyright protection; and, Pollard v Photographic Co[10], where a professional photographer took a photograph for a fee, and this made an implied contract that the photographs belonged to the subject and not the photographer.
This is important because production houses often own the copyright in images and videos of celebrities. However, whether these images can be recreated depends on several considerations. Were these images taken for a fee? Did the production house, hold copyright in these pictures? Was there a contract to that effect or was the consent implied for use of the personality rights of a celebrity even upon their death?
In looking at the issue of misappropriation of personality, it is important to consider implied consent. A good example of misappropriation of personality through implied consent is the 2019 ruling of the United States District Court of Eastern District Of Virginia involving the image of Bob Ross. The plaintiff, RSR Art, LLC, was a trust founded by Bob Ross and his son and brother.[11] The defendant, Bob Ross, Inc. (“BRI”), was founded by Bob Ross, his wife, and friends, Walter and Annette Kowalski, to promote Bob Ross commercially.[12] The Court held that the publicity rights were vested in BRI, not the trust. Although the plaintiff argued that Bob Ross intended to leave the publicity rights to the trust, the Court noted that Bob Ross had given oral consent to BRI and that BRI had registered five trademarks of Bob Ross's name and likeness with his written consent.[13] The Court also noted that BRI, and not Bob Ross, entered into third party licensing deals, meaning that BRI was the owner of Bob Ross’ likeness. Since Bob Ross never owned these rights, it could not have been inherited by his son.
Similarly, in Canada, the widow of Tim Horton filed a claim against Tim Donuts Limited for appropriation of Tim Horton's commercial personality and infringement of her copyright in slides used to prepare a portrait of him.[14] The Ontario Supreme Court held that Tim Horton had implicitly assigned his personality rights to Tim Donuts Limited by allowing them to register trademarks of his name and using his personality to market the business. The rights in Tim Horton's personality vested with Tim Donuts Limited, not his family estate.[15] The Court stated that: “[b]y these actions, TDL acquired the personality rights of Tim Horton which, if they continue to exist, have been carried on, in one form or another since his death. Until the commencement of this action in 1995, this brought forth no complaint from the plaintiff. I conclude that it was the intention of Tim Horton to exploit his commercial personality in this way. There is no evidence to suggest otherwise. During his life, he benefited from this. That benefit passed to his estate, and ultimately to Mrs. Horton on the sale of her shares in the business for $1,000,000 in 1975”.[16]
With the advancement of AI and deepfake technology, more attention will be given to the issue of the use of celebrity’s images after their death. It will be important to consider all relevant issues, including moral rights, misappropriate, and implied consent, to determine the legality of such use.
[11] RSR ART, LLC, v. BOB ROSS, INC., 380 F. Supp. 3d 510 (E.D. Va. 2019) para 512.
[14] Horton v. Tim Donut Ltd., 1997 CanLII 12372 (ON SC).
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