Canada: Cult of Personality: Using Celebrity Images in Advertising

Last Updated: November 29 2004
Article by Jeff Scanlon

This fall, Air Canada signed pop diva Céline Dion as the centrepiece of its $46 million advertising campaign designed to reintroduce the airline to the Canadian public after emerging from bankruptcy protection. Air Canada has discovered what advertisers have long known - the cachet of a celebrity to reinvigorate a brand. But advertisers who wish to use celebrity images in their campaigns must be extremely careful not to infringe the celebrity’s legal rights, which include copyright, trade-mark and misappropriation of personality protections.


In Canada, the Copyright Act protects original literary, dramatic, musical and artistic works and gives the copyright owner the sole right to reproduce the work or any substantial part of it. Since copyright protects the expression of an idea and not the idea itself, you can create your own fictional marine character, but if he substantially resembles the popular cartoon character "SpongeBob SquarePants", then you will be infringing the copyright in that character held by its author. Also, one work may attract different layers of copyright protection. For instance, an advertiser intending to use a photograph of a celebrity or fictional character must ensure that they secure the consent of the owner of the copyright in the photograph as well as the consent of the celebrity, or author of the fictional character, or risk an action for copyright infringement. Similarly, an advertisement that reproduces a video of a celebrity singing a song could require consents from the producer of the video footage, the celebrity and the organization handling the copyright in the musical work. Copyright infringement can lead to significant fines, injunctive relief and, under certain circumstances, imprisonment.


A trade-mark is any mark used to distinguish one person’s wares and services from those of another. The federal Trademarks Act ("TMA") states that the owner of a registered trade-mark has the exclusive right to use that trade-mark throughout Canada in association with the wares and services for which it has been registered. But can celebrity images be considered trade-marks?

Not unless they have been used to distinguish one person’s wares and services from those of another. For instance, the image of Paul Newman that appears on his salad dressing would be considered a trade-mark. However, section 9 of the TMA does provide some protection to celebrities in that it states that no one shall adopt, in connection with a business, any mark consisting or likely to be mistaken for: (1) any matter that may falsely suggest a connection with any living individual; or (2) the portrait or signature of any individual who is living or has died within the preceding thirty years. Therefore, advertisers are prohibited from creating an illusion of endorsement or using the signature or portrait of any living individual, with protection for an individual’s portrait extending 30 years after their death.

Trade-mark rights can also be secured for a mark incorporating an expression of a fictional character. To prove infringement of the trade-mark the owner must establish that the alleged infringer made use of the character in relation to goods or services (by using it on packaging or point of sale material or in advertising in the case of services). Passing off, which is another right of action under the TMA, merely requires that the character be used in association with the infringer’s wares and services in such a way that the public will assume that the owners of the character sponsored or endorsed the product or services in some way.

The penalty for doing this can be an award of damages, lost profits, delivery up of offending material and injunctive relief.

Misappropriation of Personality

Even if the advertising campaign you are considering has passed the copyright and trade-mark hurdles, be careful not to trip on the tort of misappropriation of personality. If your advertising campaign uses the name, image or personality of a celebrity, or someone that people will assume is the celebrity, without their consent, you could be liable.

Courts have defined "personality" to include a person’s image, name, voice and any other elements that might uniquely identify a celebrity. In order for a celebrity to plead misappropriation of personality, she or he must show that the advertiser has used her or his personality for commercial gain. Although it does not matter whether the celebrity is living or dead,1 misappropriation of personality does not apply to fictional characters.

Infringement of this tort will entail damages calculated on the basis of a "lost user fee" which is the fee that the celebrity should have received for the use of her or his personality and is often directly proportional to how famous the celebrity is.

Questions to Consider

Before starting a campaign incorporating the use of unauthorized celebrity images, ask yourself the following essential questions and review your answers with legal counsel:

  1. Have you obtained some form of consent (preferably written) for the use of the celebrity’s image in your campaign?
  2. Is the celebrity living or deceased? If deceased, how long has the celebrity been deceased?
  3. Is the purpose of your campaign commercial gain?
  4. Who owns the photograph(s) or image(s) that you will be using?
  5. Have you conducted a trade-mark search for the image you plan on using in your campaign?


Before investing significant time and effort in an advertising campaign involving the use of celebrity images, careful consideration of the business and legal issues involved is crucial. It is interesting that certain companies (e.g., Pepsi) have recently terminated virtually all of their celebrity endorsements in their major campaigns, suggesting that the risks outweighed the benefits. On the other hand, Air Canada has enlisted the help of a Canadian superstar to quick start its latest campaign. Prudent advertisers will use knowledgeable counsel to assist in avoiding legal pitfalls.


1 The fact that personality rights of celebrities are passed to their estates in Canada was confirmed by way of an injunction that was granted by a Nova Scotia court on November 25, 2004 to the estate of Don Messer, a famous Canadian fiddler, involving the unauthorized use of Messer’s personality. The court ruled that the company using Mr. Messer’s personality had to cease such use until the determination of the case, which is expected sometime next year. (Hapi Feet Promotions Inc., Frank Leahy and Dawn Penelope Attis, Executrix of the Estate of Don Messer v. Barbara Martin and Grayec Management Incorporated).

The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

© Copyright 2004 McMillan Binch LLP

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.