Personality rights, sometimes referred to as the right of publicity, are rights for an individual to control the commercial use of their identity, such as name, image, likeness, or other unequivocal identifiers. They are generally considered as property rights, rather than personal rights, and so the validity of personality rights of publicity may survive the death of the individual to varying degrees, depending on the jurisdiction.
Classification Personality rights are generally considered to consist of two types of rights: the right of publicity,Mirshekari, A. Foundations of Legal Protection of Reputation. Comparative Law Review, 2020; 11(1): 339-361. doi: 10.22059/jcl.2020.290488.633904 or the right to keep one's image and likeness from being commercially exploited without permission or contractual compensation, which is similar (but not identical) to the use of a trademark; and the right to privacy, or the right to be left alone and not have one's personality represented publicly without permission. In common law jurisdictions, publicity rights fall into the realm of the tort of passing off.
There are two main camps of theory regarding publicity rights, specifically in the United States: a more consequential or utilitarian based theory approach and a more moral-based deontological approach. The consequential or utilitarian approach assumes that because there is a potential for creators to obtain rights to an object—here an individual's personality—it will incentivize creators economically to create more goods. In contrast, a commonly cited justification for the deontological doctrine, from a policy standpoint, is the notion of natural rights from a Lockean theory of property, and the idea that every individual should have a right to control how their right of publicity is commercialized by a third party, if at all. Often, but not always, the motivation to engage in such commercialization is to help propel sales or visibility for a product or service, which usually amounts to some form of commercial speechMirshekari, A. Conflict of two rights: publicity right and freedom of expression Focusing on Legal Systems of Iran, Germany, France & the USA. The Judiciarys Law Journal, 2020; 84(110): 213-240. doi: 10.22106/jlj.2020.115618.2968 (which in turn receives the lowest level of judicial scrutiny).
Civil law and common law jurisdictions In contrast with common law jurisdictions, most civil law jurisdictions have specific civil code provisions that protect an individual's image, personal data and other generally private information. Exceptions have been carved out of these general, broad privacy rights when dealing with news and public figures. Thus, while it may violate an ordinary citizen's privacy to speak about their medical records, one is generally allowed to report on more intimate details in the lives of celebrities and politicians.
Unlike most common law jurisdictions the personality rights in civil law are generally inheritable, thus one can make a claim against someone who invades the privacy of a deceased relative if the memory of their character is besmirched by such publication. However there is a fruitful current debate regarding the alienability or transferability of these rights, in the United States specifically, in the spirit of limiting the free transfer of personality rights—as they are freely transferrable currently- to a more protective system to prevent improper access to a right so closely rooted in an individuals personality from a wrongdoer.
Personality rights have developed out of common law concepts of property, trespass and intentional tort. Thus personality rights are, generally speaking, judge-made law, though there are jurisdictions where some aspects of personality rights are statutory. Currently in the United States, all 50 states each have their own way of defining and enforcing the right of publicity, and this creates issues of uniformity across the country because each system is different and not "roughly parallel" to the other states. In some jurisdictions, publicity rights and privacy rights are not clearly distinguished, and the term publicity right is generally used. In a publicity rights case the issue to decide is whether a significant section of the public would be misled into believing (incorrectly) that a commercial arrangement had been concluded between a plaintiff and a defendant under which the plaintiff agreed to the advertising involving the image or reputation of a famous person. The actionable misrepresentation requires a suggestion that the plaintiff has endorsed or licensed the defendant's products, or somehow can exercise control over those products. This is done by way of the tort of passing off.
The meaning of the law is best illustrated by principal cases on the subject.
Country-specific jurisdictions
Australia In Australia, false association or endorsement is actionable via the law of passing off, not a separate law of "right of personality". The Henderson caseHenderson v Radio Corp Pty Ltd, (1960) 60 SR(NSW) 576, RPC 218 was a decision of the Supreme Court of New South Wales (both the first instance and appellate jurisdiction). The plaintiffs were ballroom dancers and they sued the defendant in passing off alleging it wrongfully published their photograph on the cover of a gramophone record entitled Strictly for Dancing: Vol. 1. An injunction was granted on the ground that the use suggested the plaintiffs recommended or approved of the defendant's goods, or had some connection with the goods.
However, in the 1988 case of Honey v Australian Airlines, Gary Honey, a well known Australian athlete, failed in his claim for damages after Australian Airlines used a photograph of him on a poster without his permission. The judge held, in essence, that the poster depicted excellence in general rather than a particular person.
Brazil In Brazil, the right to one's image is protected by Article 5, subsection X, of the Federal Constitution and is a fundamental right.
The Civil Code, in Chapter II (On Personality Rights), Article 20:
Canada
Statutory protection The provinces of British Columbia, Manitoba, Newfoundland and Labrador, and Saskatchewan have enacted privacy legislation dealing with personality rights, which have the following traits:
An appropriation of personality can be achieved through the use of a person's name, likeness, or voice (but British Columbia has a more restrictive definition). The plaintiff must be identified or identifiable by the use made of their persona. An action for the appropriation of personality can only succeed where the defendant intended to commit the wrong (but British Columbia has no "intention" requirement). The defendant's use of the plaintiff's persona must have resulted in a gain or advantage for the defendant (but British Columbia has a more restrictive definition, relating only to commercial gain). An appropriation of personality is actionable without proof of damages. The right of action for appropriation of personality is extinguished upon the death of the person whose privacy was violated. The following constitute statutory defences in all four provinces: (i) that the plaintiff consented to the use of their persona; (ii) that the use of the plaintiff's persona was incidental to the exercise of a lawful right of defence of person or property; (iii) that the use was authorized or required under a provincial law or by a court, or any process of a court; and (iv) that the act was that of a peace officer acting in the course of their duties. The Manitoba Act provides additional defences.
Common law provinces Canadian common law recognizes a limited right to personality. It was first acknowledged in the 1971 Ontario decision of Krouse v. Chrysler Canada Ltd., where the Court held that where a person has marketable value in their likeness and it has been used in a manner that suggests an endorsement of a product then there is grounds for an action in appropriation of personality. This right was later expanded upon in Athans v. Canadian Adventure Camps (1977) where the Court held that the personality right included both image and name.
In Gould Estate v. Stoddart Publishing Co. Ltd. (1998), the Ontario Court of Appeal concluded that simply writing about somebody, even for the purpose of generating a profit, does not constitute appropriation of personality.
The general tort of appropriation of personality is still in development, but it is currently being argued that it will be recognized in all common law provinces, with certain characteristics:
Athans confirms that there is "a proprietary right in the exclusive marketing for gain of his personality, image and name..." There is always a requirement that the plaintiff be identifiable. An action for appropriation of personality will have to be intentional for a plaintiff to recover at common law. There is a requirement that the defendant must have acted for the purpose of commercial gain, but Gould suggests that this may be restricted to "endorsement-type situations". It is a matter of uncertainty whether the common law tort of appropriation of personality is actionable per se or whether damages must be shown. Privacy rights are extinguished upon death, but personality rights are inheritable. A defendant will not be liable for an appropriation of personality at common law where: (i) they have consented to the use of their persona; (ii) the use made of their personality rights was merely incidental to another purpose; or (iii) the publication constituted a matter of public interest.
Quebec In 1994, the new Civil Code of Quebec introduced new provisions that enshrine the right to privacy as an attribute of personality:,
In Aubry v Éditions Vice-Versa Inc, the Supreme Court of Canada also affirmed that under Quebec's Charter of Human Rights and Freedoms privacy provisions, a photographer can take photographs in public places but may not publish the picture unless permission has been obtained from the subject, except where the subject appears in an incidental manner, or whose professional success depends on public opinion. The relevant provisions of the Charter are:
Therefore, the following general characteristics may be drawn:
An appropriation of personality can be realized through the use of a person's name, likeness, or voice. The plaintiff must be recognizable in order for an appropriation of personality to be actionable. There is no need for the courts to look for an element of intent. Distinctions based on commercial purposes are irrelevant, and inconsistent with § 9.1 of the Quebec Charter. The plaintiff is required to show that they suffered damage through the appropriation of their personality rights. Quebec law may allow an action to be taken by the estate of a deceased person, provided that it can be proved that there is a patrimonial aspect at stake. A defendant will not be liable for an appropriation of personality under Quebec law where: (i) the plaintiff expressly or impliedly consented to the appropriation of their personality; (ii) the use of the individual's persona is incidental to another purpose; (iii) the appropriation of personality is authorized by law; or (iv) the publication is a matter of public interest.
Cyprus In Cyprus, people depicted in photographs can oppose their use in advertisements and their publication in magazines, even if it was taken in a public place.
Denmark In Denmark, the Danish Penal Code chapters 26 and 27, provides certain personality rights. The governmental Danish Data Protection Agency, has made a declaration regarding publication on the Internet of pictures taken of persons in a public area:Datatilsynet: Billeder på internettet (in Danish)