Peter, a professional water skier, was very prominent in his field, having won numerous international championships prior to turning professional. As part of his work he was himself actively involved in promoting and marketing his name and reputation for commercial benefits.
Waterski Summer Camps Inc. operated a summer camp for children at which water-skiing was a central part of its camp program. In February, the camp hired ABC Advertising Co. to prepare promotional material for the summer camp. At this time, it attempted to engage Peter to promote and participate in the summer camp. However, due to other engagements and a busy summer work schedule, Peter refused.
In connection with Peter's promotional activities he frequently used a famous photograph of himself skiing. ABC Advertising prepared without Peter's consent a live drawing stylisation of this photograph. There was a striking similarity between the drawing and the well-known photograph of Peter. It used the drawing in a pamphlet and advertisement prepared to promote the camp. The camp's general manager approved the use of the drawings in the advertising material.
When Peter discovered the drawing, he confronted the camp about its use. The manager stated that the camp did not intend to represent Peter in the drawing, rather to convey the impression of water-skiing. Peter instituted legal proceedings against the camp and the advertising company. Discuss the basis of his claim and the arguments he may use.
C.C.L.T. 20 (Ont. S.C.)
The plaintiff's action is based in the tort of slander of title, more particularly, in passing-off and the wrongful appropriation of his personality or image. He may argue that the unauthorized use of the drawing by the camp was a deliberate attempt to market him as promoting and participating in the camp, thus creating confusion between the camp's business and the plaintiff's business. The camp was, in fact, attempting to convey to potential customers that Peter was associated with it and was thereby, trading on the goodwill and reputation he had built up for himself by pursuing his own commercial promotion. Moreover, he was the rightful owner of his own image which could not lawfully be employed without his consent.
At trial, the court held that on the balance of probabilities the use of the drawing would not confuse that segment of the public likely to read the brochure between the business of the camp and that of the plaintiff. Nor could any harm to the plaintiff's image be shown. Therefore, the claim for passing-off failed. The claim for misappropriation of personality succeeded, as the plaintiff's exclusive proprietary right to market his personality for gain had been interfered with by the camp.

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Zybrea Knight · Accepted Answer

Final Answer :

This is based on Athens v. Canadian Adventure Camps Ltd. et al. (1977), 4 C.C.L.T. 20 (Ont. S.C.)
The plaintiff's action is based in the tort of slander of title, more particularly, in passing-off and the wrongful appropriation of his personality or image. He may argue that the unauthorized use of the drawing by the camp was a deliberate attempt to market him as promoting and participating in the camp, thus creating confusion between the camp's business and the plaintiff's business. The camp was, in fact, attempting to convey to potential customers that Peter was associated with it and was thereby, trading on the goodwill and reputation he had built up for himself by pursuing his own commercial promotion. Moreover, he was the rightful owner of his own image which could not lawfully be employed without his consent.
At trial, the court held that on the balance of probabilities the use of the drawing would not confuse that segment of the public likely to read the brochure between the business of the camp and that of the plaintiff. Nor could any harm to the plaintiff's image be shown. Therefore, the claim for passing-off failed. The claim for misappropriation of personality succeeded, as the plaintiff's exclusive proprietary right to market his personality for gain had been interfered with by the camp.

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