Life Rights: Do You Need Them?
Many people live inspiring lives. Some people’s lives are so inspiring that other people (for example, writers) are compelled to tell the inspirational person’s story in the form of a movie, book or some other form of creative expression.
Writers, or other creative types, seeking to tell another person’s story will often acquire the “life rights” of the person whose story they are seeking to tell. But what are life rights? And when, if ever, is a writer required to obtain them?
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Life Rights: What Are They?
There is no strict legal definition of life rights. Rather, life rights refer to a bundle of rights that relate to an individual’s right to protect their reputation, their right to privacy, and the right to exploit their personality, likeness, image and other distinct characteristics and protect those characteristics from being misappropriated by others.
Individuals have the right not be defamed, meaning that their reputation may not be unjustly harmed. Writers must be cautious when writing about other individuals because the threshold for statements to be considered defamatory is low: a person must only credibly allege that their reputation has suffered damage. Even well-intentioned writers might unwittingly publish statements that are defamatory.
In Ontario, some people (celebrities) also enjoy personality rights (also called publicity rights) because of the commercial value associated with their personality.1 Personality rights afford individuals the right to control the commercial exploitation of their name, image, voice or likeness in connection with product endorsements.
Finally, individuals enjoy rights which protect their privacy, which, in some cases, include the right not to have their identity – famous or not – used for any commercial activity.2 Cases considered by the courts tend to be examples of egregious invasions of privacy.3 However, the law regarding invasion of privacy is a developing area and publishing someone’s private information without their consent may carry some legal risk.
Life Rights: When Do I Need to Acquire Them?
In many cases it will not be necessary to obtain life rights. If the person whose story you want to tell is deceased, you cannot defame them or invade their privacy. In Ontario, personality rights continue to exist after a person’s death, but the courts have limited enforcing personality rights to cases in which the famous person’s personality is used in connection with a product endorsement. On the other hand, publications that are in the public interest have not been found to infringe personality rights.4
When the story you want to tell is about a person who is still living it makes sense to obtain life rights when doing so is easy and practical. In addition to ensuring that you will not be subject to a legal claim, a typical grant of life rights provides for some degree of cooperation from the person whose story you want to tell. For example, the person may agree to be interviewed by you, provide documents, introduce you to others, participate in publicity, etc.
If you are unable to obtain life rights on acceptable terms and you decide to proceed, you should speak to a lawyer to determine the nature and degree of the risks you will be taking in those specific circumstances.
[1] Krouse v. Chrysler Canada Ltd., 1973 CarswellOnt 884 (Ont. C.A.).
[2] Aubry c. Éditions Vice Versa Inc., 1998 CarswellQue 4806 (S.C.C.); Vanderveen v. Waterbridge Media Inc., 2017 CarswellOnt 21225 (Ont. S.C.J.).
[3] See, for example Jones v. Tsige, 2012 CarswellOnt 274 (Ont. C.A.) (a bank employee accessed a client’s banking records more than 174 times over a four-year period, obtaining private and personal information even though this information was not published or distributed by the bank employee in any way); Jane Doe 72511 v Morgan, 2018 CarswellOnt 18310 (Ont. S.C.J.) (the plaintiff’s ex-boyfriend distributed sexually-explicit videos of the plaintiff without consent); and R. v. Jarvis, 2019 CarswellOnt 1921 (S.C.C.) (a high school teacher was found guilty of voyeurism for filming female students at school with the camera focused on their chests).
[4] Gould Estate v. Stoddart Publishing Co., 1996 CarswellOnt 3537 (Ont. Gen. Div.), affirmed 1998 CarswellOnt 1901 (Ont. C.A.), leave to appeal refused 1999 CarswellOnt 5722, (S.C.C.))
If you have questions about how or whether to obtain life rights, or wish to offer yours to someone else, please let us know…we’re happy to help!
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Author: Ian Harris, Entertainment Lawyer
Edwards Creative Law is Canada’s Entertainment Law Boutique™, providing legal services to Canadians, and international clients who partner with Canadians, in the Music, Film & Television, Animation, Interactive Digital Media, Game, Publishing and Software industries.
