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Athans v Canadian Adventure Camps Ltd 1977 CanLII 1255, 17 OR (2d) 425, 80 DLR (3d) 583

Facts:

P was as famous as a water skier could be. He actively commercialized his personality, likeness, and representation. In particular, one photo was used in all his business materials and many other paid gigs. D knew all this as well as the possibility of needing his consent yet still used a "stylized" but clearly recognizable version of this distinctive photo to market their camp. They didn't mean to cause damage and only used it for one season. Water skiing is such that average person would not be able to recognize who it is and there is no evidence participants in camp knew.

Issue(s):

Is there a tort of appropriation of personality independent of any endorsement or possible gains made by suggesting endorsement?

Ratio:

Yes, the tort of appropriation of personality arises whenever a person's exclusive tight to market their own image/personality is violated by using it in whatever way for commercial gain.

Analysis:

Mr Athans has a proprietary right in the exclusive marketing for gain of his personality, image, and name (Krouse v Chrysler)
-They indisputably used a photo of P
-Mr Athans used this photo as a distinctive indicia and had an exclusive right to do so. The artist's reproduction was a violation of this right.

-There is no evidence public cared and that any damages resulted from association with personality and him not showing up.
--No other damages besides the permission to use photo.

Holding:

P won.


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