Athans, a famous water skier, sued Canadian Adventure Camp when it used an image of him in his “trademark pose” in a commercial advertisement without his permission.
The Ontario High Court of Justice upheld Athans’ action for “appropriation of personality,” applying the analysis set out by the Ontario Court of Appeal in Krouse v Chrysler Canada Ltd. Unlike the Plaintiff in Krouse (whose image had been used in a general capacity to associate the Defendant’s product with football), the court found that the use of Athans’ image was individualized to his reputation, from which the Defendant was seeking to take commercial advantage.
The court ordered modest damages of $500 against the Defendant, basing the quantum of damages on the likely market value of the use of Athans’ image in an advertising campaign. This demonstrates the courts’ cautious attitude towards the tort of appropriation of personality, and a reluctance to award any form of punitive damages for the unauthorized use of a person’s image.
Decided by the Ontario High Court of Justice on November 9, 1977.
Click here for the full text of the decision.