Influencers and the Tort of Misappropriation of Personality
With the rise of social media personalities and influencers, the risk of having one's identity used by another person for profit is increasing. What are the remedies in law if someone begins selling merchandise with your image or likeness?
The tort of ‘wrongful appropriation of personality’ (a.k.a. ‘misappropriation of personality or identity’), is a legal cause of action that protects an individual's right to control the use of their persona, name, image, likeness, or other identifying characteristics, and to commercially exploit his or her personality.
The courts have ruled that personality rights survive the death of an individual. The use of the personality must be for the benefit of the appropriator and must cause harm or injury to the person whose identity was misused. However, a person can plead wrongdoing when their name, image or likeness has been publicly exploited without their consent, regardless of whether profit has been derived by any party or harm incurred by the plaintiff. In Canada, this right is protected by the common law. However, publicity rights fall under provincial jurisdiction, Canadian common law, or both, and rights and remedies vary from province to province accordingly.
To be actionable, the use must clearly identify the person before any wrong will be attributed. The first known court case of this cause of action is thought to be the 1971 landmark judgment of the Ontario High Court, where the plaintiff, Robert ‘Bobby’ Krouse, a professional football player for Hamilton Tiger-Cats Football Club sued Chrysler Canada Ltd. for using his photograph in an advertising campaign without his consent. Krouse won at trial but lost on appeal. Nonetheless, the court recognized and confirmed the tort of wrongful appropriation of personality as actionable in law and establishing the nature of publicity rights in Canada.
The remedies when the tort is proven can include injunctions to prevent further use of the identity, regurgitation of profits, compensatory damages for any economic harm suffered by the person whose personality or identity was misused, and punitive damages in cases of particularly egregious conduct. The timelines for bringing a claim for the tort of appropriation of identity in Ontario are subject to the statute of limitations, which is typically two years from the date of the misappropriation. It is important to note that this timeline may vary depending on the specific circumstances of the case and the applicable law.
The tort of misappropriation of personality is similar to the tort of passing-off, which states that no individual may pass off his or her goods as those of another. In the same vein, no person can imply another’s endorsement of any given product or service through unauthorised use of part or all of the bundle of rights found in the property of a personality.
In conclusion, the tort of misappropriation of personality provides individuals with a means of protecting their right to control the commercial use of their identity. Borrowers who believe their personality has been misused for commercial purposes should seek the advice of a lawyer to understand their rights and options.