The common law tort of appropriation of personality in Ontario: using legal transplant to solve the problem of the image rights lacuna in UK law

Carrick, Sarah ORCID: https://orcid.org/0000-0001-7244-8064 (2025) The common law tort of appropriation of personality in Ontario: using legal transplant to solve the problem of the image rights lacuna in UK law. The Journal of World Intellectual Property. ISSN 1422-2213

Published Version Available under License Creative Commons Attribution. Download (983kB)

Abstract

The image rights of athletes and celebrities are worth considerable sums of money to celebrities, brands, and sponsors alike. The desire to have celebrities endorse goods or services has meant that celebrities can benefit financially from selling and promoting their image. However, there is no image right in UK law. This is in spite of the fact that image rights exist in the practical sense, for example, in standard sports contracts. Thus, the courts have used varying degrees of judicial creativity to provide remedy when faced with image rights invasions, namely through passing off and breach of confidence actions. However, in the absence of image rights legislation in Ontario, the courts have also employed a degree of creativity, this time creating a free standing tort of appropriation of personality, specifically designed to deal with image rights invasions. Thus, in the absence of UK Parliamentary desire to legislate for image rights, this paper analyses whether it is possible to employ a ‘common law legal transplant’ by adopting the Ontario approach within the UK common law. This would provide a specific remedy, rather than circumventing the traditional intellectual property remedies which were not designed to deal with the issues image rights invasions create.