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Privacy, Property and Personality

The protection of privacy and personality is one of the most fascinating issues confronting any legal system. This book provides a detailed comparative analysis of the laws relating to commercial exploitation of personality in France, Germany, the United Kingdom and the United States. It examines the difficulties in reconciling privacy and personality with intellectual property rights in an individual's identity and in balan- cing such rights with the competing interests of freedom of expression and freedom of competition. The discrete patterns of development in the major common law and civil law jurisdictions are outlined, together with an analysis of the basic models of protection. The analysis will be useful for lawyers in legal systems which have yet to develop a sophisticated level of protection for interests in personality. Equally, lawyers in systems that provide a higher level of protection will benefit from the comparative insights into determining the nature and scopeofintellectual propertyrightsinpersonality,particularlyquestions relating to assignment, licensing, and post-mortem protection. H UWBEVERLEY-SMITHis a Solicitor in the Brands, Technology, Media and Telecommunications Department at Field Fisher Waterhouse in London. He is also the author ofThe Commercial Appropriation of

Personality(Cambridge 2002).

A NSGAROHLYis Professor of Civil Law and Intellectual Property Law in the Faculty of Law and Economics at the University of Bayreuth, Germany. Until 2002 he was the head of the Commonwealth Department of the Max-Planck Institute for Intellectual Property,

Competition and Tax Law, Munich.

A GNE`SLUCAS-SCHLOETTERis Lecturer in French law at the Ludwig-Maximilian University of Munich, Germany. Until 2003 she was a researcher at the Max-Planck Institute for Intellectual Property,

Competition and Tax Law, Munich.

Cambridge Studies in Intellectual Property Rights

As its economic potential has rapidly expanded, intellectual property has become a subject of front-rank legal importance.Cambridge Studies in Intellectual Property Rightsis a series of monograph studies of major current issues in intellectual property. Each volume contains a mix of international, European, comparative and national law, making this a highly significant series for practitioners, judges and academic research- ers in many countries.

Series editor

William R. Cornish, Herchel Smith Professor of Intellectual Property

Law, University of Cambridge

Advisory editors

Franc¸ois Dessemontet, Professor of Law, University of Lausanne Paul Goldstein, Professor of Law, Stanford University The Rt Hon. Sir Robin Jacob, Court of Appeal, England A list of books in the series can be found at the end of this volume.

Privacy, Property

and Personality

Civil Law Perspectives on Commercial

Appropriation

Huw Beverley-Smith

Ansgar Ohly

Agne`s Lucas-Schloetter

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press

The Edinburgh Building, Cambridge ??? ???, UK

First published in print format

© Huw Beverley-Smith, Ansgar Ohly and Agne`s Lucas-Schloetter 2005 2005

Information

on this title: www.cambridge.org/9780521820806 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. Cambridge University Press has no responsibility for the persistence or accuracy of ???s for external or third-party internet websites referred to in this publication, and does not

guarantee that any content on such websites is, or will remain, accurate or appropriate.Published in the United States of America by Cambridge University Press, New York

www.cambridge.org hardback eBook (EBL) eBook (EBL) hardback

Contents

Preface pageix

Table of casesxi

Table of statutesxxv

List of abbreviationsxxx

1 Introduction1

The commercial value of aspects of personality1

Commercial and non-commercial interests2

Personality, privacy and intellectual property3

Competing doctrinal bases of protection4

Synopsis11

2 Property, personality and unfair competition in England

and Wales, Australia and Canada13

Introduction13

Liability based on misrepresentation: the tort of passing off in English and Australian law15 Liability based on misappropriation: the Canadian tort of appropriation of personality35

Conclusions46

3 Privacy and personality in the common law systems47

Introduction47

From property to inviolate personality48

Inviolate personality and the accretion of proprietary attributes52

Conceptions of privacy53

Reconciling privacy and commercial exploitation64

The scope and limits of the right of publicity68

Privacy in English law75

Conclusion93

4 German law94

Introduction94

History96

Substantive legal protection105

Post-mortem protection124

Assignment and licensing129

Remedies138

vii

5 French law147

Framework and history147

Protection of economic interests156

Protection of non-economic interests167

Remedies providing for prevention or cessation of

the infringement: injunctions181

Remedies providing for legal redress185

Transfer191

6 Conclusions206

Introduction206

Common features and contrasts207

The three basic models of protection212

Property, intellectual property and personality214 Privacy, freedom of expression and commercial appropriation under the European Convention on Human Rights217

Conclusions: A gradual convergence?224

Bibliography227

Index239

viii Contents

Preface

The protection of privacy and personality is one of the most fascinating issues confronting any legal system. It has attracted the attention of a number ofdistinguishedacademics, practitionersand judges inthe major legal systems and there is an increasingly rich comparative jurisprudence. The relationship between privacy and commercial exploitation of an individual's attributes in advertising and merchandising is long-standing and provided the background for the developing law of privacy in several jurisdictions. Nevertheless, it has received relatively limited attention when compared to other aspects of privacy and is often regarded as being the more proper concern of intellectual property law. This book provides a detailed analysis of the different ways in which the major common law and civil law jurisdictions have responded to demands for protection of attributes of an individual's personality and the difficulties in reconciling privacy, personality and intellectual property. Inevitably a balance has to be struck between breadth and depth of coverage and we do not attempt to give a full account of all European legal systems. Rather, we have chosen four jurisdictions, England and Wales, the United States, Germany and France, which represent the most important approaches to the problem of commercial exploitation. Some jurisdictions, most notably England and Wales, are only begin- ning to address the issue of protecting attributes of personality from unauthorised commercial exploitation. Systems that are at a more advanced stage of evolution and offer a higher basic level of protection such as France and Germany have rather more intricate problems to confront in determining the nature and scope of the various personality rights. While a surprising number of common themes and patterns of development emerge the differences in structure and emphasis between the individual chapters reflect both the discrete stages of evolution in each jurisdiction and the fundamental differences between the legal systems surveyed. An awareness of these differences and the challenges faced by neighbouring jurisdictions can only help in identifying the most ix appropriate conceptual models of protection and the nature and scope of such intangible rights. Our foremost debt of gratitude is to Professor W.R. Cornish for his unfailing support and enthusiasm for the project and for reading and commenting on the draft chapters. We would also like to thank Finola O'Sullivan and the staff at Cambridge University Press for their help, support and patience as this collaborative comparative work, combining the efforts of three lawyers in separate jurisdictions took rather longer than expected to bring to fruition. Any errors, omissions or idiosyncrasies are entirely the responsibility of the authors. x Preface

Table of cases

Australian cases

Australian Broadcasting Corp.v.Lenah Game Meats Pty Ltd(2001) 185ALR188 Children's Television Workshop Inc.v.Woolworths (New South Wales) Ltd[1981]RPC 18723
Cognagra Incv.McCain Foods (Aust.) Pty Ltd(1972) 23IPR19316 Hendersonv.Radio Corp. Pty Ltd[1969]RPC2187,17,21,27,28,31,35 Hexagon Pty Ltdv.Australian Broadcasting Commission(1975) 7ALR23313

Hoganv.Koala Dundee Pty Ltd(1988) 83ALR18725-6

Honeyv.Australian Airlines Ltd(1989)ATPR40-961, affirmed (1990) 18IPR18518, 24,28
Hutchencev.South Seas Bubble Co. Pty Ltd(1986) 64ALR33018,23 Moorgate Tobacco Co. Ltdv.Philip Morris Ltd (No. 2)(1984) 56CLR4146,13

Pacific Dunlop Ltdv.Hogan(1989) 87ALR1418,24,33

Paracidal Pty Ltdv.Herctum Pty Ltd(1983) 4IPR20118,23 Pinky's Pizza Ribs on the Run Pty Ltdv.Pinky's Seymour Pizz & Pasta Pty Ltd(1997)ATPR

41-60028

Sony Music Australia Ltd & Michael Jacksonv.Tansing(1994) 27IPR64939 Taco Bell Pty Ltdv.Taco Co. of Australia Inc. (1981) 42ALR17727 Talmax Pty Ltdv.Telstra Corp. Ltd(1996)ATPR41-535,26,31 Tenth Cantanae Pty Ltdv.Shoshana Pty Ltd(1987) 79ALR27918,24,28,35,39 TGI Friday's Australia Pty Ltdv.TGI Friday's Inc. (1999) 45IPR4327 Twentieth Century Fox Corp.v.South Australian Brewing Co Ltd(1996) 34IPJ22526,31 Urenv.John Fairfax & Sons Pty Ltd(1965-1966) 117CLR11881 Victoria Park Racing and Recreation Grounds Co Ltdv.Taylor(1937) 58CLR47913, 14,80 Vieright Pty Ltdv.Myer Stores Ltd(1995) 31IPR36127 Willard King Pty Ltdv.United Telecasters Ltd[1981] 2NSWLR54713

Canadian cases

Athansv.Canadian Adventure Camps Ltd(1977) 80DLR(3d) 583,7,39,40,42, 43,45
Aubryv.E´ditions Vice-Versa Inc. (1988) 78CPR(3d) 289,44 xi Baron Philippe de Rothschild, SAv.La Casa de Habana Inc. (1987) 19CPR(3d) 11440, 42,45
Dowell et al.v.Mengen Institute(1983) 72CPR(2d) 23840,42 Gould Estatev.Stoddart Publishing Co.(1997) 30OR(3d) 52044 Heathv.Weist-Barron School of Television Canada Ltd(1981) 62CPR(2d) 9240,42,45 Holdkev.Calgary Convention Centre(2000)ACWS(3d) 1281 (Alberta Provincial

Court)42,45

Hortonv.Tim Donut Ltd(1998) 75CPR(3d) 45140,41,44

Josephv.Daniels(1986) 11CPR(3d) 54440,45

Krousev.Chrysler Canada Ltd(1972) 25DLR(3d) 4936-9,40,42-3 Krousev.Chrysler Canada Ltd(1973) 40DLR(3d) 157,40,42

Lipiecv.Borsa(1977) 31CCLT29436

Lordv.McGregor(British Columbia Supreme Court, 10 May 2000)36

Mackayv.Buelow(1995) 24CCLT(2d) 18436

Racinev.C. J. R. C. Radio Capitale Ltee(1977) 35CPR(2d) 23640,42,45

Rothv.Roth(1992) 9CCLT(2d) 14136

Walt Disney Productions Ltdv.Triple Corp.(1992) 93DLR(4th) 73927

Decisions of the European Court of Human Rights

Burghartzv.Switzerland(1994) 18EHRR101218

Chappellv.United Kingdom(1990) 12EHRR1218

Cosseyv.United Kingdom(1990) 13EHRR622220

Costello-Robertsv.United Kingdom(1995) 19EHRR112218

Dudgeonv.United Kingdom(1982) 4EHRR149218

Fressozv.France(2001) 31EHRR2892

Handysidev.United Kingdom(1979-80) 1EHRR737219

Hertelv.Switzerland(1999) 28EHRR534220

Jacubowskiv.Germany(1995) 19EHRR64219

Jersildv.Denmark(1994) 19EHRR192

Malonev.United Kingdom(1985) 7EHRR14218

Markt Intern and Beermannv.Germany(1990) 12EHRR161219

Mullerv.Switzerland(1991) 13EHRR212219

Murrayv.United Kingdom(1995) 19EHRR193220

Niemietzv.Germany(1993) 16EHRR97218

Nilsen and Johnsenv.Norway(2000) 30EHRR878219

Peckv.United Kingdom(2003)EHRR287225

Sunday Timesv.United Kingdom(1979-80) 2EHRR245219

xii Table of casesquotesdbs_dbs5.pdfusesText_10

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