Personality rights of deceased celebrities have been the subject of debate for many years due to the continued popularity of these individuals beyond their death. Recently, two events have sparked renewed discussions on the matter. The first was the announcement of the movie Finding Jack, which was set to star James Dean as the lead actor, 64 years after his death.[1] The second event, was the appearance of Peter Cushing in the movie Star Wars: Rogue One released in 2016,[2] which was released 22 years after his death and used digitally-repurposed-archive footage of Cushing by superimposing his face over another actor[3]. These events raise ethical and legal issues related to publicity, privacy, and intellectual property. This article will explore these issues through the lens of prior case law.
Personality rights of dead celebrities in Canada are worth billions of dollars, making the proper protection of these rights even more critical with the advent of deepfake technology and advanced special effects.[4] Intellectual property rights play a crucial role in ensuring that these rights are enforced even after a celebrity has passed away. The following cases illustrate this point.
In Canada, a person's image is protected by two legal parameters: 1) right of publicity and 2) privacy rights[5]. In the case of Gould Estate v Stoddart Publishing[6] (“Gould”), the main points of contention were breach of copyright and misappropriation of Glenn Gould's personality. Jock Carroll had interviewed Gould in the 1940s and wrote an article. After Gould's death, Carroll published a book with Stoddart Publishing, using remaining images and interview excerpts about Gould without permission from his estate. Gould's estate took legal action against the publisher and Carroll for the two aforementioned issues. The Ontario Superior Court held that the right of privacy is different from the right of publicity. The right of privacy is considered a personal tort, designed to protect an individual's dignity and peace of mind, while the right of publicity protects the commercial value of a person's celebrity status and is a form of intangible property, like copyright or patent, that is descendible.[7] The trial judge dismissed both claims and stated that copyright had not been breached as the interview was casual and not a lecture or dictation to Carroll, and therefore Gould had no copyright in the interview. The misappropriation of personality claim was also dismissed, as the Court stated that Gould's image was used as a subject of the book and not as an endorsement.
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