Introduction

This chapter considers the following five main arguments which might be used to justify a new remedy to prevent unauthorised commercial exploitation of personality: (i) natural rights of property; (ii) utilitarian arguments; (iii) economic efficiency; (iv) preventing or reversing unjust enrichment; and (v) protecting personal dignity. Aspects of the last two have already been encountered in substance, if not in form, in previous chapters, although they require some elaboration here. The arguments depend, of course, on the nature of the remedy for which a justification is sought. The bases of liability examined in the foregoing parts reveal three main possibilities: (i) a personal tort remedy based on infringement of privacy; (ii) a personal tort remedy based on infringement of a ‘proprietary’ interest in name, voice or likeness (similar to the Ontario tort of appropriation of personality); (iii) a more extensive right of ‘property’ in the elements of personal identity, which is fully assignable and has a post-mortem duration akin to copyright (similar to the American right of publicity). The fact that a right is labelled as ‘property’ or ‘proprietary’ is not inherently significant and does not mean that the right will have all the characteristic incidents of full ownership. Intellectual property is ‘property’ in a metaphorical and rather limited sense, and even an interest cast as a ‘right of property’, such as the American right of publicity, is a strictly determinate interest.