“Zombie” Privacy & IP Rights: Protecting the Rights to an Individual’s Image after Death: Part 1 of 2

Part 1: Privacy

James Dean could soon be starring in a new movie, over 60 years after his death! In what would be his fourth movie role, Dean’s image could be superimposed on a live actor for the film Finding Jack.  Animating deceased celebrities is not new however: a holographic image of deceased musician Tupac Shakur debuted at the CochellaTM music festival as far back as 2012.

Possible through the magic of computer technology, it would seem that deceased celebrities are as popular as ever and still command significant attention.  It is not surprising that movies and concerts are reaching back to long dead stars to “perform” for audiences. There will likely be no new scandals with these celebrities and they can be made to do whatever the creators have in mind without any “diva” pushback. While not everyone welcomes these developments, it will likely become more common as the technology continues to improve.

However, “employing” such “zombie” celebrities raises fascinating new legal issues, in particular in the areas of privacy law, and intellectual property law. 

We will leave it to you as to whether or not you find this developing phenomena creepy or disturbing, but in any case, and in honour of Halloween, we examine the rights that govern the use of these ‘zombie’ images of celebrities after death. In this Part One, we will consider what privacy rights attach to dead celebrities, and whether these rights can be exercised by their estates/heirs. In the upcoming Part Two, we will consider what intellectual property rights govern this so-called resurrection of dead celebrities.

Nothing says Halloween like a zombies…

Do Privacy Rights Apply?

Employing zombie celebrities – i.e. using the digital images of deceased celebrities in media such as film – raises two key privacy issues.  What privacy rights apply to the image of a person?  And to what extent can those rights be exercised by the estate/heirs of that person once deceased?

As the Privacy Commissioner of Canada noted in his comments to the Ontario Bar Association in 2000:

The concept of privacy now encompasses a collection of interests: protection of personal information, physical privacy, freedom from surveillance, privacy of one’s surroundings, and privacy of one’s personality – that is, the right to not have one’s personality appropriated.

At a high level, personal information is any information which is identifiable with an individual.  It is difficult to think of information that is more uniquely identifiable with an individual than their image (including their voice and name)  – sometimes characterized as one’s “personality”.  As a result, privacy law prima facie accepts that an individual’s image is the personal information of that individual. 

The federal Personal Information Protection and Electronic Documents Act (“PIPEDA”), the Quebec An Act Respecting the Protection of Personal Information in the Private Sector (the “Quebec Privacy Act”), and the British Columbia and Alberta Personal Information Protection Acts therefore clearly require consent for any collection, use or disclosure of someone’s identifiable image, as being their personal information.

However, there are four older Canadian statutes that more explicitly address the issue, ironically predating the technology which allows for zombie celebrities:  the British Columbia, Manitoba, Saskatchewan and Newfoundland Privacy Acts.  Effectively, this legislation makes the misappropriation of a person’s image a tort. For example, the Manitoba Privacy Act states that a person who substantially, unreasonably, and without claim of right, violates the privacy of another person, commits a tort against that other person, and provides the following example:  that the privacy of a person may be violated:

(c) by the unauthorized use of the name or likeness or voice of that person for the purposes of advertising or promoting the sale of, or any other trading in, any property or services, or for any other purposes of gain to the user if, in the course of the use, that person is identified or identifiable and the user intended to exploit the name or likeness or voice of that person;

The Civil Code of Quebec (“C.C.Q”) – which also governs privacy in Quebec and is the foundation on which the Quebec Privacy Act is based – also expressly addresses the issue of the use of an individual’s image.  Specifically, Section 36(5) of C.C.Q. states that:

using his name, image, likeness or voice for a purpose other than the legitimate information of the public without consent may be considered to be an invasion of the privacy of a person.

Finally, it is worth noting that the first of two new privacy torts recognized in Ontario in 2012 – i.e. the tort of “intrusion upon seclusion” privacy breach tort, as introduced in Jones v. Tsige – could allow a person to claim that the use of a person’s image without consent provides the necessary elements for a successful claim of the tort of intrusion upon seclusion.   According to that case, this tort has three elements: (i) the defendant’s conduct must be intentional, including reckless, (ii) the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns, and (iii), a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.  The tort is based on the reasonable person standard, to determine deliberate and significant invasions of personal privacy, but the Court also noted, as a non-exclusive list, that this could include intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.

In coming to its finding, the court referenced how in American jurisprudence there was a four-tort catalogue of privacy breaches, which included intrusion upon seclusion, but also included, as a separate, fourth tort, appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.  While the court declined to engage with this fourth tort as being unnecessary to determine Tsige, it remains possible that the use of a person’s image could still serve as the basis for the tort of intrusion upon seclusion, where the particular facts meet the three-part test of Tsige.

In summary, then, any person using another person’s image without consent, in particular in order to exploit the name or likeness or voice of that person, is potentially in breach of multiple privacy regimes and guilty of tortious conduct.  

Post-Mortem Privacy Rights in an Image

Now what if that person is dead?  That is, who – if anyone – is able to exercise these privacy rights on behalf of the deceased individual – sometimes characterized as “post-mortem privacy”.

This area of the law is clearly still under development in the Canadian private sector privacy regime, and as a result is complex and unclear.  However, the answer again appears to be informed by whether the right of publicity is characterized as a personal right (which right will generally extinguish on the death of the person) or a property right (which right will generally survive the death of the person).

Under the Saskatchewan, Newfoundland and British Columbia privacy legislation, this statutory right of action for violation of privacy via misappropriation of a person’s image is expressly extinguished by the death of the person whose privacy is alleged to have been violated.  Thus those three jurisdictions have appeared to have adopted the characterization of this right as a being a personal right.  The Manitoba Privacy Act, however, is silent on the survivability of this right after death.

In contrast, the federal, Quebec, British Columbia and Alberta private sector privacy legislation do not expressly address the issue of whether personal information rights survive the death of the individual.  PIPEDA, for example, is confused on the issue.  It defines “personal information” as information about an identifiable individual, but defines personal health information as various kinds of enumerated categories of information “with respect to an individual, whether living or deceased”.  That of course begs the question as to whether, by expressly referencing “deceased” for “personal health information” and not doing so for “personal information”, the intention of the drafters was to leave “personal information” as being a “personal” right exercisable only by the living.

So what about common law?  Ontario does not have a statutory tort of appropriation of personality, but Ontario courts have recognized damages for the improper appropriation of a person’s name or likeness – for example, in the cases of Athans v. Canadian Adventure Camps Ltd. (“Athans”), and Krouse v. Chrysler Canada Ltd. (“Krouse”), both of which addressed the misappropriation of image where the person bringing the action was still living.

However, one of the more well known cases, Gould Estate v Stoddart Publishing Co (“Gould”) did address the issue of personality rights where the individual was deceased, and in doing so clearly – albeit in obiter – characterized the right of publicity as being a property right and – unlike the statutory tort – distinguished this right from the right of privacy.

The decision was affirmed on appeal. The estate of a deceased celebrity in Ontario would therefore be entitled to authorise or restrict use of the likeness of the deceased.  While the court suggested that the term of any such right could be akin to the term of copyright, the court did not provide any definitive statement of the term of any such rights.

In short, while the statutory privacy torts generally treat this right as a personal right, Ontario common law treats it as a property right, and as such, any heir to whom this right devolves may bring such a tortious action. 

What does this all mean?  Well, in effect, if the applicable jurisdiction, treats this right of personality as a privacy, and thus personal, right, it will likely expire on the death of the individual.  For example, see Giacomelli Estate v. Canada (Attorney General), where the Ontario Court of Appeal, in finding that these claims were not allowed to be continued by the deceased’s estate, stated that:

… rights guaranteed by s. 15(1) of the Charter cannot be asserted by an estate because those rights are personal and, therefore, end with the death of the affected individual:

In the context in which the claim is made here, an estate is just a collection of assets and liabilities of a person who has died. It is not an individual and it has no dignity that may be infringed. The use of the term “individual” in s. 15(1) was intentional. For these reasons, we conclude that estates do not have standing to commence s. 15(1) Charter claims. In this sense, it may be said that s. 15 rights die with the person.

While this case was limited to Charter rights, it is nevertheless important.  While the Charter does not specifically mention privacy or the protection of personal information, it does afford protection under Section 7 (the right to life, liberty and the security of the person), and Section 8 (the right to be secure against unreasonable search or seizure), which rights the Office of the Privacy Commissioner has characterized as being somewhat foundational to the right of privacy in Canada.  Thus the Supreme Court appears to confirm that that such “personal” rights are extinguished upon death.

In that context, it could be difficult for the estate of a deceased to bring a misappropriation of personality claim based on a characterization of the right as being a privacy right:  for example, bringing a claim under the Manitoba Privacy Act, or under the general Canadian private sector legislation, which are otherwise silent on whether this privacy right is extinguished upon death.

Rather, it looks like the more fruitful approach for an estate or an heir seeking to control the image of the deceased, is to characterize the right of personality as being a property right, divisable to the deceased’s heirs.

In addition to reanimating celebrities, social media technologies now allow individuals who would otherwise not be famous, to develop careers influencing the public in their online selections of product and/or services; leading to the creation of the “online influencer” phenomena.  Sometimes there is overlap; James Dean has over 180,000 followers, despite the fact that Dean himself would have had no idea what is Instagram.  But it is clear that online influencers should also be able to take advantage of the legal framework set out herein.

In Part Two, we will look at how the intellectual property regime protects the rights of the deceased, but now “reanimated”, to their own image.  Stay tuned…

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Mark D. Penner’s practice focuses on all aspects of the acquisition, protection, enforcement and strategic use of a wide range of intellectual property assets in Canada and around the world.

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John is a senior partner who Chairs the firm’s Technology practice group, and was Co-Founder of the Outsourcing practice group. His practice is focused on technology, outsourcing and procurement and privacy law matters.