Athans v. Canadian Adventure Camps Ltd. et al.
17 O.R. (2d) 425
ONTARIO HIGH COURT OF JUSTICE
9TH NOVEMBER 1977.
Unfair trade practices — Passing off — Plaintiff professional water-skier — Defendant publishing distinctive picture of plaintiff in advertising brochure — Whether liable for passing off. Torts — Appropriation of personality — Plaintiff professional water-skier — Defendant publishing distinctive picture of plaintiff in advertising brochure — Whether liable for wrongful appropriation of personality.
Negligence — Duty of care — Negligent misstatement — Public relations firm advising client that it could legitimately publish a drawing of a water-skier without the latter’s consent — Advice erroneous — Whether public relations firm liable for negligence.
The plaintiff was an expert water-skier with an international reputation. He had a characteristic and distinctive photograph of himself water-skiing which he used for commercial purposes. The second defendant, a public relations firm, copied the photograph and published it, as a line drawing, in a brochure prepared for the first defendant advertising a summer camp for children. Both defendants intended simply to depict a water- skier in action, water-skiing being an important part of the camp programme. The second defendant told the first defendant that there would be no need for the plaintiff’s consent since the line drawing was a “stylization”. The plaintiff’s name was nowhere used in the defendant’s brochure, but the drawing would have been identifiable by a small circle of knowledgeable persons. In an action by the plaintiff for passing off and for wrongful appropriation of his personality, held, no case of passing off was made out, since the persons likely to read the brochure were not likely to identify the drawing as a picture of the plaintiff. The defendants were, however, liable for the tort of appropriating the plaintiff’s personality, the reproduction of the drawing for commercial advantage being an invasion of the plaintiff’s exclusive right to market his personality. The measure of damages should be the amount he ought reasonably to have received in the market for permission to publish the drawings.
As between the two defendants, the second defendant, the public relations firm, was liable for its negligent statement that the plaintiff’s permission was not required. As an expert in the public relations field the second defendant should have realized that there might have been a legal problem.
[McCulloch v. Lewis A. May (Produce Distributors), Ltd.,  2 All E.R. 845; The Clock Ltd. v. The Clock House Hotel, Ltd. (1936), 33 R.P.C. 269; Singer Manufacturing Co. v. Loog (1882), 8 App. Cas. 15; Krouse v. Chrysler Canada Ltd. et al. (1973), 1 O.R. (2d) 225, 40 D.L.R. (3d) 15, 13 C.P.R. (2d) 28; revg  2 O.R. 133, 25 D.L.R. (3d) 49, 5 C.P.R. (2d) 30; Tolley v. J. S. Fry and Sons, Ltd.,  A.C. 333; Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.,  2 All E.R. 575; Allan v. Bushnell T.V. Co. Ltd.; Broadcast News Ltd., Third Party,  1 O.R. 107, 1 D.L.R. (3d) 534, refd to]
ACTION for damages for passing off and for wrongful appropriation of personality.
L. T. Forbes, Q.C., for plaintiff.
M. O’Brien, for defendant, Canadian Adventure Camps Limited.
R. H. Parker, for defendant, Ideas Diversified Limited.
HENRY, J.:– The plaintiff is a professional athlete who has achieved the highest recognition for his prowess in water- skiing, both in Canada and internationally. He promotes his image, expertise, and personality commercially.
The defendant, Canadian Adventure Camps Limited (C.A.C.), operates a summer camp for children. In 1975, the camp opened for its first season on a commercial basis, featuring water- skiing as an important part of its programme. For promotional purposes, it published a brochure and an advertisement containing a graphic representation of a water- skier, which the plaintiff says is identifiable with him, and was used for commercial purposes without his consent. The drawings used in the brochure and the advertisement were based upon a photograph of the plaintiff in the act of water-skiing, and were made by the defendant, Ideas Diversified Limited (I.D.L.), which prepared the promotional material for C.A.C.
The plaintiff claims against both defendants damages for passing off and for wrongful appropriation of the plaintiff’s personality; and, in the alternative, compensation for use of his image and personality. The defendants say that prospective customers seeing the drawings could not recognize them as the plaintiff, and would not associate the plaintiff with the camp; that no passing off was intended or accomplished and that, in any event, the plaintiff has suffered no injury or damage as a result. Each of the defendants says that, in the event of liability, the other is at fault, and claims contribution and indemnity against the other.
The plaintiff, George Athans, Jr., is a professional Canadian athlete of undoubted stature in the field of water-skiing. He was born in 1952 of parents eminent in aquatic sports. He started water-skiing at the age of four, and entered his first competition at the age of nine. He won the Canadian Water- Skiing Championship in 1965 at the age of 13 and, between 1965 and 1974, won the Canadian National Water-Skiing Championship 10 times, the over-all World Water-Skiing Championship twice in succession, held the world’s slalom record from 1969 to 1972, was twice Western Hemisphere Champion and Masters Champion. He twice won commercially-sponsored international championships in Canada (Benson & Hedges, Belvedere). He has also received athletic recognition by, among other things, being named to Canada’s Amateur Athletic Hall of Fame in 1971, Canadian Amateur Athlete of the Year in 1972 and 1973, and was named to Canada’s Sports Hall of Fame in 1975. He received the Order of Canada in 1973. This list is not exhaustive and these honours were all accorded to him before 1975 when the events with which we are concerned took place. By then he had won every event of international significance in water-skiing, other than in the Far East, and held 40 to 50 titles. He did not compete in 1975, owing to a knee injury.
After he won his first world title in 1971, Mr. Athans decided to promote and market himself commercially. He had a private company incorporated for the purpose of his business under federal law. He purchased a photograph taken by a professional photographer in San Francisco showing himself in the act of making a turn around a ball on a slalom course. This photograph (ex. 18) is an excellent dramatic black-and-white action shot of Mr. Athans, and is described in evidence not only as exhibiting perfect form, but also as characteristic of his personal style. One witness described it as the best-known water-skiing photograph in the world. Mr. Athans described it as his trademark. Since 1971, he has used it to promote himself commercially. It appears on his letterhead, on his business card, in his promotional packages, in magazines and other publications. In 1971, after winning his first world title, he received numerous offers from water-ski manufacturers to use his endorsement. He made a non-exclusive contract with Ski Gliders, who are Canadian manufacturers of water-skis and equipment, for the use of his name, photograph, and endorsement, for a period of five years. The catalogue of this manufacturer (ex. 9) contains the photograph I have mentioned, as well as other photographs of Mr. Athans. This firm also published a promotional poster which is essentially an 18” x 24” enlargement of the photograph with the name of George Athans prominently associated with the manufacturer (ex. 26). The same photograph was used to advertise the Benson & Hedges 100’s International — Canada’s first professional water-ski tournament organized by a tobacco manufacturer, which took place in Calgary, in August, 1973.
In 1972, Mr. Athans made a contract with Saucier Inc., a manufacturer of water-skis and equipment in the United States, to use their products in competition and to allow his name and photographs to be used for marketing them. His name and several photographs were used in the Saucier catalogue for 1974-75.
In addition to using the photograph (ex. 18) as such, Mr. Athans had prepared considerable promotional material containing representations of himself in action, by way of artistic illustrations and “high-contrast stat” reproductions of his photographs. Among these is a high-contrast stat of the photograph (ex. 18), which is displayed on the cover of Mr. Athans’ portfolio of promotional material. It appears also on a promotional poster (ex. 1) prepared for him. This representation, unlike an illustration, is prepared by a photographic process directly from the photograph itself, and gives the impression of an ink drawing or sketch that is unmistakably a form of reproduction of ex. 18 when the two are compared. The high-contrast stat of ex. 18 was used to advertise the Belvedere King-Size Professional Water-Ski Championship at Toronto in 1974.
Also prior to 1975, Mr. Athans had gained some exposure on national television in Canada, had undertaken a cross-Canada tour, speaking on sports, for the Minister of National Health and Welfare. He had written an article on the purchase of water-ski equipment in the Canadian Consumer, for June, 1973, in which the photograph ex. 18 was featured, and he subsequently co-authored a textbook on water-skiing. He was well-known, at the very least, in water-skiing circles and the associated media, and in sports circles generally. He was putting his exploits and personality to commercial advantage in the somewhat limited market related to water-skiing activities. Clearly, on the evidence, the photograph ex. 18 and the representations of that photograph in various artistic forms were identified by knowledgeable people with George Athans, the outstanding Canadian and international champion.
In 1974, the defendant, C.A.C., was preparing to launch a boys’ camp which was to open in the summer of 1975, featuring water-skiing as a major programme. Mr. Connett, the president of the company, had little knowledge of water-skiing, and sought the advice of Mr. Sokolowski, the executive director of the Ontario Water-Skiing Association, which is the Ontario regional body of the Canadian Water-Ski Association, who, himself, is a water-skier of note. Mr. Sokolowski was fully familiar with Mr. Athans and his record of achievements as a water-skier. His organization publishes a magazine called the Ontario Water-Skier. Through Mr. Sokolowski, Mr. Connett learned of Mr. Athans’ association with water-skiing and, in the fall of 1974, he conceived the idea of having Mr. Athans associated with the camp’s programme. He made an agreement with the defendant, I.D.L., in January, 1975, as experts in marketing and promotion, who had been recommended to him, to do the promotional work for the camp. Connett then arranged a meeting with Mr. Athans in January of 1975, at which representatives of I.D.L. and C.A.C. were present, to discuss the possibility of Mr. Athans’ commercial participation in the camp’s programme. The proposal was that Mr. Athans would assist in selecting and setting up the water-ski equipment for the camp, would take charge of the water-ski programme and instruction, and would lend his name, image, and endorsement to the project during the summer of 1975. Mr. Athans was to consider the proposal and, in the meantime, Mr. Connett wrote him that the promotional material which was in preparation would be held up pending his decision. In the result, Mr. Athans declined to become involved with the camp for that season, because he could not commit himself to the required time during July and August, when he planned to enter further competitions. He was not prepared to lend his name to such a project without being personally present, as he considered it unfair to himself and to the public to be an absentee endorser of an active programme. Mr. Connett agreed not to use Athans’ name for that season, and the matter was amicably deferred for further discussion as to his possible participation in future seasons.
In the meantime, the defendant, I.D.L., in consultation with C.A.C., had the promotional material for the camp on the drawing-board, and publication was becoming urgent. The promotional plan was to publish an advertisement in the Ontario Water-Skier, and to prepare and publish a brochure to attract customers to the camp, in which the programme and facilities would be described. Mr. Steventon of I.D.L., who was responsible for the art-work, examined material relating to water-skiing that he received from Mr. Connett of C.A.C., and also canvassed his own sources. No one in I.D.L. or C.A.C. was knowledgeable about water-skiing, but Mr. Steventon and Mr. McCullough, the president of I.D.L., and Mr. Connett had met Mr. Athans at the meeting in January. Mr. Steventon looked for a good action picture to depict the sport of water-skiing, and selected the photograph of George Athans from the Sea-Gliders Catalogue (ex. 9), which is the “trademark” photograph (ex. 18). From this he made a line drawing which he described as a stylization of a water-skier in action. By stylization, I understood him to mean that the drawing was not intended to be more than an impression of the action and surroundings depicted, and was not intended to represent a particular person or occasion. Nevertheless, on an objective view of the drawing, even allowing for artists’ licence and the impressionistic technique, there is a striking similarity between the drawings and Mr. Athans’ “trademark” photograph, and its various derivatives, that I have mentioned.
On February 17, 1975, Mr. Connett approved the art-work, and the drawing was incorporated into the cover of the camp brochure; a similar, although not identical, drawing was prepared for insertion as a centre-fold in the March – April issue of the Ontario Water-Skier, in conjunction with the advertisement for the camp.
Mr. Connett had some previous knowledge of promotional work, and when he saw the drawing presented to him by I.D.L., he asked the source and discovered the photograph of Mr. Athans in the Sea-Gliders Catalogue, from which it was derived. He inquired whether this presented a problem (by which I understood him to mean whether a release from Mr. Athans was necessary) and was told that there was no problem as the drawing was stylized; he, therefore, approved the artwork and I.D.L. produced and distributed the brochure.
The drawing to be used for the advertisement was another version of the drawing presented to Connett by I.D.L. and, as I understand the evidence, was not seen by him before it was printed in the Ontario Water-Skier. It was taken to Mr. Sokolowski for insertion in the next issue of the Ontario Water-Skier. Mr. Sokolowski thought that Mr. McCullough, the president of I.D.L., took it to him, but the evidence is not clear as to whether he was the person who did so. Mr. Sokolowski at once recognized the stylization as a likeness of George Athans, and asked if his permission had been obtained. He was told by the caller that it was not Mr. Athans, but was some American skier. He accepted this, and the drawing was incorporated into the centre-fold of the issue of March – April, 1975. That issue also carried an advertisement on the inside cover featuring Mr. Athans in person, in connection with a sale of water-ski equipment by a Toronto retailer; and in the same issue appeared an advertisement for a “George Athans Crest”, a form of badge, bearing the image of Mr. Athans based on the “trademark” photo, ex. 18.
Mr. Connett sent a copy of the camp brochure to Mr. Athans by way of keeping him informed as to the progress of the camp venture. Mr. Athans replied, questioning the authority to use the drawing. Mr. Connett admitted that the drawing was a representation of Mr. Athans, and apologized to him, stating that it was not their intention to cause him damage or concern. The matter was then referred to solicitors.
I now recapitulate my findings of fact on the evidence. Prior to the publication of the camp brochure and the advertisement in the Ontario Water-Skier, George Athans had achieved national and international fame as a champion water-skier. He was given outstanding recognition in Government and sports circles for his prowess. He had received considerable public exposure in the media and in public appearances, as well as in competition.
He had exploited his achievements and personality commercially and, for this purpose, actively promoted himself. One important means of marketing his personality was the use of a distinctive and characteristic photograph that he had purchased, together with derivative representations of that photograph, which portrayed him in a pose and setting that was identifiable with him personally. This, and other images and material descriptive of him was used by businesses with whom he associated himself for reward. The photograph and its derivatives constituted his “trademark”, and this action shot or pose, notwithstanding that other photographs of other skiers depicted similar poses, had become particularly associated with Mr. Athans among the cognoscenti. Mr. Connett, as I infer, was aware of this, as he had been given a copy of Mr. Athans’ promotional poster, ex. 1, and had also seen it in Mr. Sokolowski’s office. The drawings prepared by I.D.L. were admittedly derived from the photograph of Mr. Athans, ex. 18, and, as I find, were, in all the circumstances, a graphic representation of him, identifiable by members of the public, albeit a limited group who are knowledgeable about the sport of water-skiing and competitors in that field. At the time of publication of the advertisement and the brochure, Messrs. Connett, McCullough, and Steventon knew, or ought to have known, that the drawings were a graphic representation of George Athans, although they considered them to be stylizations, knew of the possible need to get his consent to their use, and consciously rejected it; they also knew that Mr. Athans was in the business of marketing his personality commercially through the photograph, at least. The brochure and the advertisement containing the graphic representations of Mr. Athans were, in fact, published for the commercial advantage of C.A.C., without the consent of Mr. Athans, and I.D.L. was a party to this.
The following further findings of fact are relevant to the issues I have to decide. The advertisement in the Ontario Water-Skier containing the image of George Athans, did not appear in any subsequent publication. The brochure containing the image of George Athans was used in connection with the camp’s operation for the 1975 season only, and was not subsequently used. The evidence, as a whole, satisfies me that the two defendants did not intend improperly to use the image
of Mr. Athans as such for the purposes of their promotion. I accept Mr. Connett’s explanation that there was no intention to injure or cause concern to Mr. Athans, and I accept the explanation of the witnesses, McCullough and Steventon, that their intention was to produce a stylized, or abstract, drawing, of an interesting and attractive kind, depicting the sport of water-skiing without intending it to be a representation of any particular person. In this respect, their intention was innocent, but their judgment was faulty and misinformed.
I also find, on the evidence, that the sport of water-skiing, as it is competitively and professionally conducted, is characterized by limited public knowledge and support. It is not, for example, in the same class as professional football, hockey, tennis, or golf. While there is no reliable evidence as to the extent of publicity given to this sport and its personalities, I can infer that competitively and professionally it has limited public appeal. While several witnesses testified on behalf of the plaintiff that they could unmistakably recognize the drawings in the advertisement and the brochure as depicting George Athans, those witnesses had a particular detailed familarity with the field and cannot, on the evidence, be identified with any major segment of the public. On the evidence, I cannot find that more than a relatively small number of very well-informed people would be likely to recognize the drawings as representations of Mr. Athans, without the addition of his name, to identify them. Apart from the drawings, there was no mention of Mr. Athans in either the advertisement or the brochure.
I turn now to a consideration of the claim for passing off. Essentially, the action of passing off constitutes the sale of goods or the carrying on of a business under a name, mark, or description in such a manner as to mislead the public into believing that the merchandise or the business is that of another person. The law is designed to protect traders against a form of unfair competition, which consists of acquiring for oneself by means of false or misleading devices the benefit of the reputation already achieved by a rival trader. Typically, the defendant seeks to acquire this benefit by passing off his goods as the goods of the plaintiff.
In McCulloch v. Lewis A. May (Produce Distributors), Ltd.,  2 All E.R. 845, Wynn-Parry, J., described the action as follows, at p. 849: It is of the essence of an action for passing off to show, first, that there has been an invasion by the defendant of a proprietary right of the plaintiff, in respect of which the plaintiff is entitled to protection, and, secondly, that such invasion has resulted in damage or that it creates a real and tangible risk that damage will ensue. It is with the first part of that proposition that I am immediately concerned. It is established beyond argument that under the law of England a man is not entitled to exclusive proprietary rights in a fancy name in vacuo. His right to protection in an action for passing off must depend on his showing that he enjoys a reputation in that name in respect of some profession or business that he carries on or in respect of some goods which he sells. Further, he must show that the acts of the defendant of which he complains have interfered or are calculated to interfere with the conduct of his profession, business or selling goods, in the sense that those acts of the defendant have led or are calculated to lead the public to confuse the profession, business or goods of the plaintiff with the profession, business or goods of the defendant. The element of confusion is essential, but the element of confusion necessitates comparison.
And at p. 851, he continues: I have listened with care to all the cases that have been cited, and on analysis I am satisfied that there is discoverable in all those in which the court has intervened the factor that there was a common field of activity in which, however remotely, both the plaintiff and the defendant were engaged and that it was the presence of that factor that grounded the jurisdiction of the court.
In The Clock Ltd. v. The Clock House Hotel, Ltd. (1936), 33 R.P.C. 269, Romer, L.J., in the Court of Appeal, stated the principle as follows:
There is really no dispute and can be no dispute as to the principle of law involved in this case. The principle is this, that no man is entitled to carry on his business in such a way or by such a name as to lead to the belief that he is carrying on the business of another man or to lead to the belief that the business which he is carrying on has any connection with the business carried on by another man.
In my opinion, the plaintiff has not made a case for passing off, for the simple reason that, on the evidence as a whole, I am not able to find that the use of the line drawings in the advertisement and the brochure were, on the balance of probability, likely to give rise to confusion between the plaintiff’s business and that of the defendant, C.A.C. The problem for the plaintiff lies not with the “common field” element because the plaintiff and the defendant are both to greater or lesser degree engaged in the business of exploiting the sport of water-skiing commercially. The decisive point, however, is that, as I hold, it is improbable that the relevant segments of the public who would read the advertisement and the brochure would associate the business of C.A.C. with the athlete, George Athans. As I have said, there is no evidence that any but the most knowledgeable persons concerned in the sport of water-skiing would identify the drawings with Mr. Athans. It is obvious that the brochure and advertisement are designed to attract customers who wish to send their children to a summer camp where water-skiing is featured in the programme. There is no evidence, and experience suggests it is unlikely, that that segment of the public would be particularly knowledgeable about the sport of water-skiing, or would identify the drawings with Mr. Athans. It is not sufficient that persons having expert knowledge of the field would identify him and would connect him with the defendant’s camp: see Singer Manufacturing Co. v. Loog (1882), 8 App. Cas. 15 at p. 18. There is nothing in the explanatory material, either in the advertisement or the brochure, that either names or otherwise identifies Mr. Athans with the programme. Any confusion between Mr. Athans’ business and that of the defendant, C.A.C., or any misconception that Mr. Athans was endorsing the camp programme, would depend solely upon the prospective customer recognizing the stylized drawings as those of Mr. Athans. In my opinion, this is not only improbable, but is unlikely. I, therefore, hold that the plaintiff has not made out a case in the tort of passing off. I add that, had I found that the plaintiff should succeed on this head of claim, I would have awarded nominal damages only as, in my opinion, substantial damages have not been proved.
I turn now to the second head of claim, namely, wrongful appropriation of the plaintiff’s personality. I say at once that, on the basis of recent authority, it is clear that Mr. Athans has a proprietary right in the exclusive marketing for gain of his personality, image and name, and that the law entitles him to protect that right, if it is invaded: see Krouse v. Chrysler Canada Ltd. et al. (1973), 1. O.R. (2d) 225, 40 D.L.R. (3d) 15, 13 C.P.R. (2d) 28. If a case for wrongful invasion of this right is made out, then the plaintiff is entitled, in appropriate circumstances, to an injunction and to damages, if proved. It is only in recent years that the concept of appropriation of personality has moved from its place in the tort of defamation, as exemplified by Tolley v. J. S. Fry and Sons, Ltd.,  A.C. 333, to a more broadly based common law tort. In Krouse v. Chrysler Canada Ltd. the Ontario Court of Appeal considered a situation where an automobile manufacturer distributed for purposes of advertising its products, a device known as a spotter, which was a type of entertaining device associated with the sport of football. On this device was printed a colour photograph of several football players in action, depicting dramatically a moment in time in the course of a football game. Prominent in this photograph was the rear view of the plaintiff, who was at that time a well-known football player, whose number on the back of his sweater, also well-known, and identified with him, was clearly displayed. The Court rejected the plaintiff’s claim for passing off, on the grounds that the buying public would not buy the products of the automobile manufacturer on the assumption that they had been designed or manufactured by the plaintiff, or that the spotter had been designed and produced by him, or was produced by the manufacturer to be passed off on the public in competition with a similar product marketed by the plaintiff. The Court then directed itself to the claim for appropriation of the plaintiff’s personality and, after considering the authorities, made the following pronouncement, per Estey, J.A., p. 238 O.R., p. 28 D.L.R.:
I, therefore, conclude from the foregoing examination of the authorities in the several fields of tort related to the allegations made herein that the common law does contemplate a concept in the law of tort which may be broadly classified as an appropriation of one’s personality. Assuming the existence of such a wrong in our law, it remains to be determined whether the respondent has established that the appellants have committed such a wrong and have thereby damaged the respondent.
In the result, the Court of Appeal held, reversing the trial Judge [ 2 O.R. 133, 25 D.L.R. (3d) 49, 5 C.P.R. (2d) 30], that a case was not made out by the plaintiff (respondent) on the factual ground that it was the game of professional football that had been incorporated in the advertising device known as the spotter, and not the personality of the respondent, who was but one of many individual participants in the game. In reaching this conclusion, the Court held that there was no suggestion that the plaintiff brought the spotter into being nor was in any way concerned in its production, and that the appellants (defendants) sought to gain a trade advantage by associating themselves with the popular game of football and, not with any particular team or participant, with the objective of attracting the attention of football followers to their automobiles. In the result, the appeal was allowed and the action dismissed.
The case at bar differs in that water-skiing is fundamentally a sport of individual participants. If the defendants, C.A.C., wished to derive commercial advantage by associating its activities with the sport of water-skiing, it would be natural and acceptable that it should adopt some device depicting an individual water-skier in action. But the defendants, out of, no doubt, a vast number of photographs of unknown water-skiers in action that must be available, chose the photograph of George Athans in a pose that was used and known as his “trademark” image, and deliberately incorporated a representation of it in the promotional material at a time when C.A.C., at least, knew that Mr. Athans would not be associated with the camp for the forthcoming season, and had undertaken not to use his name. Had the defendants identified the promotional drawings as representing George Athans, or incorporated in the printed copy language stating or implying that he was endorsing, sponsoring, or participating in the camp’s activities, I would unhesitatingly find that the defendants had appropriated his personality for commercial advantage. But, as I have said earlier, the drawings are the only aspect of the material that could form any supposed connection between Mr. Athans and the defendant’s camp. On a careful reading of the advertisement and brochure as a whole, I cannot detect that there is any possible suggestion, apart from the drawings themselves, that Mr. Athans is in any way associated with the camp. On the basis of the drawings alone, it is not only improbable, but is highly unlikely that potential customers of the camp would consider that George Athans, assuming they even knew who he was, had lent his personality to the camp, or had endorsed it, or was participating in its programme. It is inconceivable that a commercial venture such as the defendant seeking to launch itself as an unknown entrepreneur on the market, would have the endorsement or participation of a celebrity such as Mr. Athans without expressly highlighting that fact and trading upon it.
While, in my opinion, it would not be necessary for the plaintiff to show that any person had been misled, it is significant to note that, according to the evidence of Mr. Connett, which I believe and accept, only 20 campers were attracted to the camp in 1975 (so that the operation was a loss in that year) and none of the campers either drew attention to the promotional material as representing Mr. Athans, or inquired if he would be present at the camp. Clearly, if I am to believe Mr. Athans’ assessment of his own commercial potential in marketing his personality, he was not a drawing card so far as this camp was concerned. In my opinion, the obvious inference is that the promotional material did not have the effect of establishing any connection in the minds of the relevant public between Mr. Athans and the camp. Moreover, I am unable to find that even those intimately knowledgeable about the sport of water-skiing would derive such an impression.
According to the evidence, professional athletes generally find it to their disadvantage to sponsor an active programme such as a sport camp to which they lend their name, image, and personality, without personally attending to participate. To put it shortly, a professional athlete loses credibility and so does the enterprise sponsored if he is associated with the venture, but is not present to meet the public who are attracted to it. Knowledgeable people would be aware of this and, in the absence of some express or clearly implied indication in the promotional material that he was a sponsor or participant, would not, on the balance of probability, draw that conclusion. On the evidence as a whole, I find that the action of the defendants does not amount to a wrongful appropriation of Mr. Athans’ personality, as such. I further find, in case it should be necessary, that Mr. Athans has suffered no injury or damage (apart from what I shall say later) by the action of the defendants. An attempt was made to show, by way of evidence, that Mr. Athans’ image was likely to be tarnished commercially by his association with a venture that had no reputation and could, by conducting an amateurish programme, bring him into disrepute as a professional athlete and sponsor of other enterprises. This allegation was not supported by any firm evidence (although an attempt was made to lead hearsay, which I ignore). As far as the evidence goes, that allegation is both vague and speculative, and the plaintiff has not satisfied me that he has suffered any injury or damage even assuming that some vague connection could be made by members of the public between his personality and the defendant’s camp. The same may be said of the implication that emerges from Mr. Athans’ evidence that if he were to be regarded by knowledgeable people as an absentee endorser of the camp’s project, this would in some way bring him into disrepute. That proposition has not been established to my satisfaction on the evidence.
This, however, does not dispose of the matter. The defendants have used the image of George Athans for their commercial advantage. Although Mr. Steventon, the artist who created the drawings complained of, clearly stated that he created them from the original photograph, ex. 18, and did not make a copy of anything, the drawings bear such a striking resemblance to Mr. Athans’ promotional material in the form of the photograph and its various derivatives that I have described, as to lead to the inescapable inference that the defendant’s drawings were merely a further representation of Mr. Athans’ “trademark” pose. I find that I.D.L. has copied the photograph or one of its derivatives. On the one hand, this act may be regarded as an aspect of the emerging tort of appropriation of personality. On another view of the matter, it may be regarded as falling within the general field of infringement of unregistered trademarks or copyright; but as the action is not so framed, I set that aside. Mr. Athans had, as I find, adopted the photograph ex. 18 and the various representations of it, as his distinctive indicia. He used them as an essential component in the marketing of his personality, which he had an exclusive right to do. The commercial use of his representational image by the defendants without his consent constituted an invasion and pro tanto an impairment of his exclusive right to market his personality and this, in my opinion, constitutes an aspect of the tort of appropriation of personality. This conduct gives rise to an action sounding in tort that is separate and distinct from any action based on infringement of trademark or copyright, should that exist.
In using the drawings, the defendants were aware of their sources in ex. 18, its use by Mr. Athans commercially, its identification with him, and na*vely decided that they were not obliged to obtain his consent. They knew that the photograph was used as part of his business, and Mr. Connett knew that any arrangement for Mr. Athans’ participation or endorsement of the camp would call for compensation to Mr. Athans. The defendant, I.D.L., was aware that commercial negotiations were in progress with Mr. Athans. In the circumstances, the reproduction for commercial advantage of the photograph in the form which it took, was an invasion of Mr. Athans’ exclusive right to market his personality. For this he is entitled to compensation. No other injury having been proved, the measure of damages should be the amount he ought reasonably to have received in the market for permission to publish the drawings. It is difficult to assess damages on this basis on the evidence. Mr. Athans had not previously been commercially associated with a camp or programme of this kind. His previous business had consisted of his competing professionally for prizes and retainers, while endorsing manufacturers’ products and acting as their technical advisors, and publishing a book and an article. He was not prepared to sponsor the defendant’s camp without personally participating in the programme, and he would not, therefore, have merely lent his image and name to it without more. His agent, Mr. Smith, indicated that for Mr. Athans’ participation in the programme, as contemplated, he would ask for a guarantee of $5,000 together with royalties based on a percentage of the gross receipts of the camp. This, of course, never materialized and cannot, in my opinion, provide the measure of damages here; moreover, what Mr. Smith might demand in negotiating on behalf of Mr. Athans is not the measure of what he would receive in the market or from the defendant after proper negotiation.
I do not recall any evidence as to what Mr. Athans had previously charged for the use of his photograph or its derivatives alone without its being identified clearly with him by the use of his name or in some other way. Moreover, the income that he has received has been for the purposes of endorsement of commercial enterprises and products and this is not of assistance because Mr. Athans has not endorsed the defendant’s camp, nor as I have held, does the use of his image in the form of the drawings constitute an endorsement or other association with the camp. If compensation is to be measured by some function of the gross revenue of the camp for 1975, that revenue was $5,559, as against expenses of $22,000, resulting in a substantial loss on the operations for that season. So far as the evidence shows, the advertisement and the brochure were primarily sent to the members of the Ontario Water-Skiing Association, which numbered something less than 2,500. It is probable that approximately that number of copies of the advertisement and brochure were distributed to the public.
If 10 per copy were allowed to Mr. Athans, this would amount to $500 for the copies of the drawings appearing in both publications. This figure approximates 10% of the gross receipts of the camp for 1975. I acknowledge that these are arbitrary amounts, but having regard to all the circumstances, I consider that it would be fair to Mr. Athans and to the defendants to award damages in the amount of $500.
There will, therefore, be judgment in favour of the plaintiff, as against both defendants, jointly and severally, for the amount of $500.
The defendant, C.A.C., brings third party proceedings for contribution and indemnity against the defendant, I.D.L., and I.D.L. claims contribution and indemnity over against C.A.C. Both defendants, as against each other, rely on the Negligence Act, R.S.O. 1970, c. 296. I find that Mr. Connett, in retaining I.D.L. in its capacity as a public relations firm, for the purpose of preparing the promotional material for the camp operation, did so in reliance upon the expertise of I.D.L. in the field of public relations. I.D.L. held itself out as having this expertise. Although Mr. Connett had some nodding acquaintance with commercial promotion in his former association with a tobacco company he, nevertheless, relied on I.D.L. for all aspects of the proposed promotion. He was told by Mr. McCullough that any releases required would be the responsibility of C.A.C.; but when, upon being presented with the art mechanicals incorporating both the copy and the artwork for the proposed brochure and advertisement, he inquired as to the source of the artwork, and discovered that it was the Athans photograph ex. 18, he was told that no release was necessary because it was a stylization. He relied upon this assertion made to him by Mr. McCullough. While I.D.L. is not competent, nor does it hold itself out as competent, to give legal advice, it is reasonable that Mr. McCullough should assume that I.D.L. was experienced in situations in which the question of obtaining a consent or a release for material to be published, and would, if necessary, obtain legal advice in the first instance. If this was not the pattern to be followed, it was incumbent upon I.D.L. to inform Mr. Connett that the legal position had not been submitted to solicitors, and to warn him that he should protect himself. Instead of doing this, Mr. McCullough advised him that there was no problem. In giving this advice, Mr. McCullough was negligent and, in my opinion, I.D.L. must bear the responsibility for that negligent statement: see Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.,  2 All E.R. 575; and Allan v. Bushnell T.V. Co. Ltd.; Broadcast News Ltd., Third Party,  1 O.R. 107, 1 D.L.R. (3d) 534.
The defendant, Canadian Adventure Camps, as the plaintiff in the third party action, will have judgment against Ideas Diversified Limited, for contribution and indemnity in respect of the damages that I have awarded to the plaintiff.
The plaintiff also claims an injunction to restrain future use of Mr. Athans’ image. On the evidence, there is no reasonable apprehension that the defendants will do so and in the circumstances, this remedy is not appropriate.
It remains to dispose of the question of costs. Counsel have requested an opportunity to speak to the matter and may do so at a convenient time.
Judgment for plaintiff.