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Focus: Appropriation of personality after death issue in estates

Focus On: Family Law/Trusts & Estates
The deaths of actors who play essential characters in long-running movie franchises, along with the technical wizardry available to produce “performances” from them after death, have opened a can of worms in the estate field. Controlling the commercial use of aspects of your personality after death is now something that all celebrities, and potential celebrities, need to turn their minds to.

“The right to use of personality is a bundle of rights that courts recognize as assets that can be gifted under wills,” says Suzana Popovic-Montag, managing partner of Hull & Hull LLP in Toronto. “People need to be aware of it.”

In fact, public awareness has just blossomed thanks to the “digital resurrection” of actor Peter Cushing using another actor and special effects in the Star Wars prequel Rogue One.” The issue garnered such public interest that upon the death of actress Carrie Fisher, who played Princess Leia in the Star Wars franchise, Disney was forced to issue a statement that it was not in negotiations to acquire rights to re‑create her image in its next movie.

“The truth is the actual tort itself has been around since the 19th century when the English courts dealt with it,” says Popovic-Montag.

“The potential ways that personality can be appropriated has expanded significantly with technology. People used to worry about someone’s photo being used. Now there are many ways someone’s name, image, likeness, voice and other parts of their personality can be used for a commercial purpose and exploited.”

Apart from computer graphics, there are also holographic performances and infinite possibilities from the explosion of social media.

“There are limitations,” says Popovic-Montag.

“You have to recognize that the world is full of celebrities these days. Given the rise of social media and loss of privacy, minor exploitation is only to be expected.”

Another limitation is the inconsistency in the law between jurisdictions.

“Even if someone is Canadian and ordinarily resident here, they may be working in another jurisdiction where they don’t have it,” warns Popovic-Montag.

“People need to explore whether it’s available there and not assume transferability to the other jurisdiction. There’s a lot of transience.”

In the United States, 31 states recognize the tort but only 20 of those provide for the rights to survive death. The celebrity hotspot of California has protection for 70 years after death, as a result of the efforts of the lawyer son of actor Bela Lugosi, who was famous for playing Dracula. The home state of Hollywood is witnessing increasing efforts by actors’ unions to negotiate clauses that limit the use of images in the context of sex, violence and drugs or even to prevent actors from overexposure.

In England, where Peter Cushing lived, there are no rights at all. In Canada, British Columbia, Manitoba, Saskatchewan, Quebec and Newfoundland have statutory rights to “wrongful use of personality,” but it is only in Manitoba that the statutory right survives death.

All the provinces except Quebec have a common law tort. In Ontario, it was first recognized by the Ontario Court of Appeal in Krouse v. Chrysler Canada Ltd., (1973), 1 O.R. (2d) 225 (Ont. C.A.), in which a famous football player depicted in a promotional item distributed by Chrysler Canada failed to establish the tort because the image was not the primary object of the photograph. However, the court did delineate the tort.

“It created a two-part test,” explains Popovic-Montag. “Firstly, the use of personality must be for a commercial purpose, and secondly, the medium must clearly capture the individual.
There is a difference between use of an individual as a subject for a biography or use of a mechanism as a means to obtain a commercial gain.”

“There’s not a lot of cases in the courts, but there will be more,” predicts Popovic-Montag.

“There is authority for an estate trustee to commence proceedings to say there has been an appropriation of personality so as to protect the estate,” she says.

Iain MacKinnon, a media lawyer and partner at Linden & Associates in Toronto, says the state of the law in Ontario is in flux.

“In the U.S., the tort is well recognized,” he says. “The estate of Elvis Presley rakes in millions and millions each year. It’s not as clear in Canada if it lasts or how long it lasts. You could argue that it lasts as long as the person is recognized and known. It could be in perpetuity if the person has a recognizable image and there’s commercial value in the image.”

From the perspective of media outlets, MacKinnon urges caution.

“If someone came to me, I would tell them they should be tracking down the executor of the estate and getting permission,” he says.

“That’s the prudent thing to do. Go and license the image or even the famous voice. It’s very risky to just go ahead without permission.”

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An estate trustee who took an ‘egregious' position in litigation has been ordered to personally pay more than $140,000 in costs. Will this ruling serve as an appropriate caution to executors on how they conduct themselves in litigation?
Yes, this will remind trustees of the potential exposure of significant awards being made against them personally.
No, it’s unlikely this ruling will dissuade executors from engaging in unreasonable conduct during litigation.