Post-Mortem Rights of Publicity

Marie-Andree Weiss wrote an interesting post recently comparing the treatment of post-mortem rights of publicity in California and New York (Marie-Andree’s post was prompted by the then-pending enactment of California Assembly Bill 585, which extended publicity rights to deceased persons who were not famous during their lifetime, but became famous as a result of their death).

The Canadian analogue to the right of publicity is the tort of appropriation of personality.  Ad Idem (the Canadian Media Lawyers Association) hosts Mitchell A. Flagg’s article Star Crazy: Keeping the Right of Publicity out of Canadian Law, which offers a lengthy treatment of US, Commonwealth and Canadian law on the topic.  Anna Shahid, writing at IPilogue, provides a very handy short overview on the tort of appropriation of personality, which includes this conclusion about post-mortem rights in Canada:

Furthermore, the personality rights of an individual survive the individual’s death and allows for his or her heirs to protect the unauthorized use of such rights. It is unclear whether the rights expire after some time has lapsed since the death of the individual. However, ‘it seems reasonable to conclude that whatever the durational limit, if any, it is unlikely to be less than 14 years’ (Glen Gould Estate v. Stoddart Publishing Co. Ltd., 1998 CanLII 5513 (ON CA)).

Additional short-form sources include Rob McDonald and Chad Zima’s “I am the Greatest” – The Use of Celebrity Endorsements and Images and Daniel Anthony’s Got Personality? How Can You Protect It?.  Lengthier academic treatment is available in Susan Abramovitch’s “Misappropriation of Personality” (33 Canadian Business Law Journal 230 (2000)), and David Vaver’s “What’s mine is not yours: Commercial appropriation of personality under the Privacy Acts of British Columbia, Manitoba and Saskatchewan” (15 UBCL Rev 241 (1981))

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Bob Tarantino

About Bob Tarantino

Bob Tarantino is Counsel at Dentons Canada LLP and focuses his practice on the interface between the entertainment industries and intellectual property law, with an emphasis on film and television production, financing, licensing, distribution, and IP acquisition and protection. His clients range from artists and independent producers to Canadian distributors and foreign studios and financiers at every stage of the creative process, from development to delivery and exploitation.

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