Law Times

Law Times • February 27, 2017 Page 11 www.lawtimesnews.com Appropriation of personality after death issue in estates BY JUDY VAN RHIJN For Law Times T he deaths of actors who play essential characters in long-running movie franchises, along with the technical wizardry available to produce "performances" from them after death, have opened a can of worms in the estate field. Controlling the commercial use of aspects of your personal- ity after death is now something that all celebrities, and potential celebrities, need to turn their minds to. "The right to use of person- ality is a bundle of rights that courts recognize as assets that can be gifted under wills," says Suzana Popovic-Montag, man- aging partner of Hull & Hull LLP in Toronto. "People need to be aware of it." In fact, public awareness has just blossomed thanks to the "digital resurrection" of actor Peter Cushing using another actor and special effects in the Star Wars prequel Rogue One." The issue garnered such public interest that upon the death of actress Carrie Fisher, who played Princess Leia in the Star Wars franchise, Disney was forced to issue a statement that it was not in negotiations to acquire rights to re-create her image in its next movie. "The truth is the actual tort itself has been around since the 19th century when the English courts dealt with it," says Popo- vic-Montag. "The potential ways that per- sonality can be appropriated has expanded significantly with technology. People used to worry about someone's photo being used. Now there are many ways someone's name, image, likeness, voice and other parts of their per- sonality can be used for a com- mercial purpose and exploited." Apart from computer graph- ics, there are also holographic performances and infinite pos- sibilities from the explosion of social media. "There are limitations," says Popovic-Montag. "You have to recognize that the world is full of celebrities these days. Given the rise of so- cial media and loss of privacy, minor exploitation is only to be expected." Another limitation is the in- consistency in the law between jurisdictions. "Even if someone is Canadi- an and ordinarily resident here, they may be working in another jurisdiction where they don't have it," warns Popovic-Montag. "People need to explore whether it's available there and not assume transferability to the other jurisdiction. There's a lot of transience." In the United States, 31 states recognize the tort but only 20 of those provide for the rights to survive death. The celebrity hotspot of California has protec- tion for 70 years after death, as a result of the efforts of the lawyer son of actor Bela Lugosi, who was famous for playing Dracula. The home state of Hollywood is witnessing increasing efforts by actors' unions to negotiate claus- es that limit the use of images in the context of sex, violence and drugs or even to prevent actors from overexposure. In England, where Peter Cushing lived, there are no rights at all. In Canada, British Colum- bia, Manitoba, Saskatchewan, Quebec and Newfoundland have statutory rights to "wrong- ful use of personality," but it is only in Manitoba that the statu- tory right survives death. All the provinces except Que- bec have a common law tort. In Ontario, it was first recognized by the Ontario Court of Appeal in Krouse v. Chrysler Canada Ltd., (1973), 1 O.R. (2d) 225 (Ont. C.A.), in which a famous football player depicted in a promotional item distributed by Chrysler Canada failed to establish the tort because the image was not the primary object of the pho- tograph. However, the court did delineate the tort. "It created a two-part test," ex- plains Popovic-Montag. "Firstly, the use of personality must be for a commercial purpose, and sec- ondly, the medium must clearly capture the individual. There is a difference between use of an individual as a subject for a biog- raphy or use of a mechanism as a means to obtain a commercial gain." "There's not a lot of cases in the courts, but there will be more," predicts Popovic-Montag. "There is authority for an es- tate trustee to commence pro- ceedings to say there has been an appropriation of personality so as to protect the estate," she says. Iain MacKinnon, a media lawyer and partner at Linden & Associates in Toronto, says the state of the law in Ontario is in f lux. "In the U.S., the tort is well recognized," he says. "The estate of Elvis Presley rakes in millions and millions each year. It's not as clear in Canada if it lasts or how long it lasts. You could argue that it lasts as long as the person is recognized and known. It could be in perpetuity if the person has a recognizable image and there's commercial value in the image." From the perspective of me- dia outlets, MacKinnon urges caution. "If someone came to me, I would tell them they should be tracking down the executor of the estate and getting permis- sion," he says. "That's the prudent thing to do. Go and license the image or even the famous voice. It's very risky to just go ahead without permission." LT FOCUS Suzana Popovic-Montag says 'the right to use of personality is a bundle of rights that courts recognize as assets that can be gifted under wills.' Go and license the image or even the famous voice. It's very risky to just go ahead without permission. Iain MacKinnon P rivacy and the protection of personal data are a major concern in modern society. Complicated privacy legisla- tion exists in many jurisdictions with the objective of protecting personal information by imposing multiple safeguards, some of which can be frus- trating to deal with. With the increas- ing stores of digital information, we also frequently see reports of security breaches of government and major corporations' databases, not to mention instances of identity fraud, theft and other cyber-attacks. Juxtaposed against society's increasing vigilance to attempt to safeguard the privacy of our financial and personal matters in a digital age, is the lack of such protection, and in fact, open public disclosure of sensitive personal information after a person dies which arises out of the probate process. Many people are unaware that in a large number of Canadian and foreign jurisdictions, a probated will is a public document. Information regarding estate values included in court records relating to wills and probate applications is accessible and searchable by the general public. For example, in Ontario, the public can obtain copies of wills as well as probate applications and grants for a fee where the personal representative of an estate filed a probate application with an Ontario court (except in the rare circumstance where a judge has ordered a file sealed) including probate grants from 1793 to 1970 held by the Archives of Ontario. The probate application includes the value of the deceased's estate, including personal assets and real estate assets. Why is it that, particularly with respect to non- contentious estates, the value of a person's estate and the contents of his or her will, all of which we would consider private and sensitive information, is publicly disclosed upon death? In particular, given modern attitudes and public policy concerning privacy of information? There seems to be a huge disconnect. While some documents may have historical and archival interest and importance to family members and genealogists, it would seem that the public display of one's will and probate grant after death has no value or significance, and should remain confidential. And a strong argument can be made that there is a potential harm in making this information available. For example, vulnerable persons and beneficiaries could become targets for financial abuse. In 2013, perhaps recognizing this unnecessary invasion of personal privacy, the Law Society of England and Wales proposed an "opt-out" procedure for removing certain information from the grant of probate, including the value of estate assets in non- contentious proceedings. There are planning options that can be considered to protect privacy. A trust set up during one's lifetime can be used as a will substitute. If a trust is established prior to death and assets are transferred to the trustees to be held by them, the trust agreement, the trust assets and beneficiaries generally remain private upon the client's death. For assets that do not require a court grant to administer, one technique that may be available in certain jurisdictions, including Ontario, is the use of "multiple wills", i.e., executing a primary will and a secondary will. The primary will deals with assets that require a grant of probate to administer them, such as financial assets with large institutions and real estate, and the second will deals with assets that typically do not require probate, such as shares of private family corporations, family loans and personal and household effects. Upon the death of the person who made the will, the executor discloses the existence of both wills to the court, but application is made for a limited court order for only the primary will, and matters relating to the secondary will (which often has the most significant value) generally do not become public. This technique also results in minimizing probate fees and Ontario Estate Administration Tax on the assets passing under the secondary will. Jointly-held property with right of survivorship and beneficiary designations may be other ways to achieve enhanced privacy of one's estate affairs upon death, and can also reduce probate fees and Ontario Estate Administration Tax. As with any estate planning, including the strategies briefly reviewed above, proper advice from a professional advisor based on a client's particular situation is critical. Margaret O'Sullivan, O'Sullivan Estate Lawyers LLP Confidentiality Matters: Thoughts on Death and Privacy www.osullivanlaw.com Sponsored by

• Cover