Businesses will often create marketing material for their products/services, either in print or short video segments. A very common question I get from clients is “Can I use another person’s image in my video/marketing material without their consent?” In sum, the answer is no, it is not recommended that you use another person’s image without their consent, whether or not that person is famous.
This issue is governed by both privacy legislation and the common law in Canada.
Further, there could be jurisdictional issues as well if the advertising goes outside of the Province of BC (which, given the internet it likely ALWAYS does whether you actually intend it to or not).
Essentially, Canadian common law recognizes a “right to personality”. It was first acknowledged in the 1971 in the Ontario decision of Krouse v. Chrysler Canada Ltd. In this case, the Court held that where a person has a marketable value in their likeness and it has been used in a manner that suggests an endorsement of a product or service then there is grounds for an action in “appropriation of personality”.
Essentially, if you do not obtain the consent of the person whose image you are using, they can sue you. This right was later expanded upon in Athans v. Canadian Adventure Camps (1977) where the Court held that the personality right included both image and name.
There is substantial later case law that confirms use of images/video/photo of ANY individual without their consent constitutes infringement of their privacy, and their personality rights and is grounds for litigation.
This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on intellectual property and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or [email protected]. Vanessa is registered Canadian and US Trade-mark Agent and practices in the area of Intellectual Property at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you.
