Personality Rights After Death
Disney’s decision to “resurrect” Peter Cushing through CGI to reprise his role from 1977’s Star Wars for the franchise’s most recent film, Rogue One, has attracted a lot of attention. Cushing died over 20 years ago. Cushing portrayed a popular character in the original 1977 movie, to which Rogue One is a direct prequel. Rather than recast the role, Disney used CGI technology to create an entirely new performance with Cushing’s likeness. This decision has raised interesting issues, both ethical and legal.
While not confirmed, it seems likely that Disney asked permission of Cushing’s estate to use his likeness in the film. There were two mentions of Cushing in the film’s credits: “With Special Acknowledgment to Peter Cushing, OBE” and “Special Thanks to The Estate of Peter Cushing, OBE.” The laws about the right to prevent others from using and profiting from an individual’s likeness without his or her consent, variously called publicity rights or personality rights, differ significantly across jurisdictions. In California, there are strong protections that last 70 years after death, whereas in England, where Cushing lived, there are no such rights at all.
In Ontario, there is no statute that protects the use of personality, name, or image of an individual, as there is in British Columbia, Manitoba, and Saskatchewan. There is, however, a common law tort of “appropriation of personality.” In Saskatchewan and British Columbia, the cause of action for appropriation of personality is extinguished on death. The exact scope of the cause of action is unclear in Ontario law. In Gould Estate v Stoddart Publishing Co, the Ontario Court of Justice declared obiter that personality rights or rights of personality are devisable under Ontario law. Therefore, the “asset” of a deceased individual’s personality rights pass to heirs as any other assets, pursuant to the Succession Law Reform Act. The decision was affirmed on appeal. The estate of a deceased celebrity in Ontario would therefore be entitled to authorise or restrict use of the likeness of the deceased. The court declined to address how long these rights endure.
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