Facts[]
Athans, a professional water-skier, is bringing forward an action for damages against the defendants, a summer camp and a public relations firm. The plaintiff has a distinctive photo of himself which he uses commercially and which Ideas Diversified made a line drawing copy of in the production of a brochure for Canadian Adventure Camps. Athans name was not mentioned in the brochure. The plaintiff brought action for misappropriation of property and compensation for the use of his image and personality.
Issue[]
- Was Athans' personality wrongfully appropriated?
Decision[]
Finding for the plaintiff, award of $500.
Reasons[]
The court applied the test for misappropriation of personality as laid out in Krouse:
- The plaintiff's image was used in a fashion recognizable to the public
- The image was used for the defendant's commercial advantage
- The court held it was unlikely that the public would believe Athans was endorsing the camp
- No firm evidence was presented that Athans had suffered any damage
Despite failing this test, the court held that commercial use of this picture, which Athans had adopted as his personal indica, without consent constituted an invasion and impairment of his exclusive right to market his personality and this constitutes an aspect of the tort of appropriation of personality. On this basis the court found both defendants liable.
Ratio[]
- The commercial use of someone’s distinctive indica without their consent can amount to invasion of their exclusive right to market and constitute an appropriation of personality.
- For non-intentional torts the plaintiff is required to show harm, however for most intentional torts this is not required.