Image appropriation complaints mounting against advertisers

As former Olympic champion biathlete Myriam Bédard readied herself last month for a legal battle with BBDO Canada, Wrigley Canada and the chewing gum maker's U.S. parent over the alleged misuse of her image in a Quebec transit ad campaign, a...

As former Olympic champion biathlete Myriam Bédard readied herself last month for a legal battle with BBDO Canada, Wrigley Canada and the chewing gum maker’s U.S. parent over the alleged misuse of her image in a Quebec transit ad campaign, a case with similar overtones has made its way to the courts in Toronto.

The latter case, however, could have broad consequences for advertisers and agencies that use images of ordinary people, as it raises the question of whether they share the same rights as celebrities in protecting the use of their images.

In July, two individuals filed a joint statement of claim in the Ontario Superior Court, alleging that a Bell Mobility ad posted in the Toronto subway system last summer had used a photographic image of them without their consent. Seeking $300,000 in damages, they argued that the ad was damaging to their reputations because they oppose ‘the commercialization of youth culture for corporate gain’.

According to the statement of claim, the ad made use of a photograph showing the two individuals dancing in a ‘private’ nightclub. Bell Mobility declined to comment on the matter, but documents it filed with the court contend the pair ‘implicitly consented’ to having their photograph taken.

One of the key points setting this case apart from Bédard’s is that the plaintiffs are not celebrities. One is a former host on a campus community radio station in Toronto and the other is described by his lawyer as a graphic artist.

If the pair are successful in their suit, the ruling could change the way advertisers and agencies use images of live models to promote their products, says Jan Waldin, the lawyer representing the pair. ‘The right of privacy is a personal one that isn’t a right you acquire if, and only if, you become famous,’ he says.

But Canadian case law is hardly clear on the issue of image appropriation, as the tort is only a quarter-century old, and only a handful of cases have ever gone to trial. None have addressed the non-celebrity question.

Meanwhile, Frank Monteleone, an intellectual property specialist with Toronto law firm Cassels Brock & Blackwell, says more such cases are being brought forward all the time, although they rarely go to trial. One possible explanation for the increase, he says, may be that the public is becoming more familiar with the law and are more aware of their rights than they were in the past.

However, another explanation offered up is that the quickening pace of business in the advertising world and the pressure it puts agencies under to turn their work around quickly may be encouraging some to cut corners. The result may be that time-pressured agency personnel deliberately neglect to obtain consent from the people whose images are captured in photographs intended for commercial use.

‘The laws are vague,’ says John Speakman, a partner with Toronto ad agency The Ongoing Partnership. ‘I’ve spoken to photographers about it and they’ve found the same thing. There are all sorts of different definitions of what’s fair game and what isn’t and nobody seems to know the rules.’

From Karen Howe’s dining table: Creativity, COVID and Cannes

ICYMI, The Township's founder gathers the best of the best campaigns and trends so far.

Cannes Base Camp

By Karen Howe

I’m attending Cannes from the glory of my dining room table. There’s not a palm tree in sight, yet inspiration and intel are present in abundance.

Cannes Lions is a global cultural pulse check. The social course correction in the wake of the murder of George Floyd and BLM has delivered far greater diversity in the judging panels as well as the work. And we are all better for it.

I’m proud to say that creativity defeated COVID, which speaks to its power. Great work and big ideas flourished, despite unimaginable odds.

The work from the past two years spans a vast emotional range. From the profundity of Dove’s “Courage is Beautiful” to the hyper exuberance of Burberry’s “Festive,” they are opposite ends of the spectrum, but each answered a need in us.

Take note, the ascendency of gaming cannot be understated. Smart brands have embraced the channel. It makes sense, because gamers participate to meet others around the world, not just to play. And they represent a huge and powerful community. That’s why QSR Wendy’s gamified their iconic gal in RPG’s Feast of Legends.

Burger King sponsored the unknown Stevenage Football Club, transforming the team into online heroes and vaulting BK into the fray at the same time. Once again, the brand embedded itself in culture.

The birth of gaming tourism arrived when Xbox snuggled up to travel guides and created a brilliant baby: a travel guide for gaming worlds. It, too, embedded itself in culture.

From the standpoint of social good, Reporter Without Borders showed how it worked with Mindcraft for its “Uncensored Library” to bypass press censorship, with Minecraft providing a loophole to a space where young people could be educated. It provided youth with a powerful tool to fight oppression: truth.

COVID changed us in unexpected ways. We learned how to pay attention again and there was a notable lack of 30-second commercials. Instead, longer format content thrived. Apple’s WFH was seven minutes long. Entertainment reigned king, so we find ourselves returning to our advertising roots.

Seeing competitive brands form partnerships was one of this year’s other great surprises. The brilliantly simple “Beer Cap Project” by Aguila to reduce binge-drinking saw the brand reach out to competitive beers to join in. Aguila put incentivizing (keyword: free) reminders to drink water, eat food and get home safely on its bottle caps from all sorts of fast food chains, ride-share co’s and H2O brands.

On a personal level, I’m so proud of Canada again this year. Given that it was two years of work from all over the world being judged, even making the Cannes shortlist was an accomplishment. Canada is herding in the Lions in tremendous numbers – and it’s not even over. Fingers are crossed.

KAREN-HOWE-PIC-higher-rez-300x263Karen Howe is a Canadian Cannes Advisory Board Member and founder of The Township Group