Gould Estate V. Stoddart Publishing Co. Ltd. - The Judgment Below

The Judgment Below

At trial, Lederman J. dismissed both claims.

• On the copyright issue, copyright in the photographs vested in the defendants, while Gould’s oral statements in the interview did not attract copyright which might have given the estate standing to sue.
• On the issue of appropriation of personality, the judge found that Gould's proprietary rights were not violated because Gould's image was used as a subject of the book rather than for endorsement.

Lederman J. discussed the area of appropriation of personality at some length in his judgment. In obiter comments, he characterized it as being a right of publicity, as opposed to a right of privacy. The latter is a personal right which does not survive the death of the subject, while the former can devolve to the subject's estate:

In the end then, and perhaps at the risk of oversimplifying, it seems that the courts have drawn a “sales vs. subject” distinction. Sales constitute commercial exploitation and invoke the tort of appropriation of personality. The identity of the celebrity is merely being used in some fashion. The activity cannot be said to be about the celebrity. This is in contrast to situations in which the celebrity is the actual subject of the work or enterprise, with biographies perhaps being the clearest example. These activities would not be within the ambit of the tort. To take a more concrete example, in endorsement situations, posters and board games, the essence of the activity is not the celebrity. It is the use of some attributes of the celebrity for another purpose. Biographies, other books, plays, and satirical skits are by their nature different. The subject of the activity is the celebrity and the work is an attempt to provide some insights about that celebrity.

A more theoretical approach to distinguishing the Privacy Acts can be found in U.S. law. There, several cases have recognized a distinction between the right of privacy and the right of publicity.... The former is considered a personal tort and is designed to protect an individual’s interest in dignity and peace of mind. The right of publicity, on the other hand, protects the commercial value of a person’s celebrity status. As such, it is a form of intangible property, akin to copyright or patent, that is descendable. Given that the Canadian statutory rights of action are found in Privacy Acts, it would certainly seem that, following the U.S. reasoning, whatever statutory restrictions there may be on the rights of action for privacy violations and unauthorized use of personality, they should not be applied to the common law tort of appropriation of personality.

The right of publicity, being a form of intangible property under Ontario law akin to copyright, should descend to the celebrity’s heirs. Reputation and fame can be a capital asset that one nurtures and may choose to exploit and it may have a value much greater than any tangible property.

He summarized the issue of copyright as follows:

Here too, the nature of the interview, conducted in informal settings—at an empty Massey Hall, at the home of Gould’s mother and on vacation in the Bahamas—was such that it was intended to be casual, to catch the spontaneity of Gould when he was relaxing. The conversation between the two men was the kind that Gould would have with a friend. Indeed Gould and Carroll remained friends for a short while afterwards. Gould was not delivering a structured lecture or dictating to Carroll. Rather, Carroll engaged Gould in easygoing conversation out of which emerged comments which provided insights into Gould’s character and personal life. Gould was making offhand comments that he knew could find their way into the public domain. This is not the kind of discourse which the Copyright Act intended to protect.