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.’

In Brief: The Garden picks CDs to take on daily creative leadership

Plus, Naked names two new leaders of its own and Digital Ethos comes to Canada.
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The Garden promotes two creative directors

ACDs Lindsay Eady and Francheska Galloway-Davis have taken over responsibility for day-to-day creative leadership at The Garden after being promoted to creative director roles.

The pair will also help develop the agency’s creative talent, formalizing mentorship and leadership activities they have been doing since joining the agency four and three years ago, respectively. In addition to creating the agency’s internship program, the pair have worked on campaigns for Coinsquare, FitTrack and “The Coke Challenge” campaign for DanceSafe.

Eady and Galloway-Davis will continue to report to The Garden’s co-founder and chief creative officer Shane Ogilvie, who is stepping back from daily creative duties to a more high-level strategic role, allowing him to focus on client relationships and business growth.

Naked Creative Consultancy names new creative and strategy leadership

Toronto’s Naked Creative Consultancy has hired Yasmin Sahni as its new creative director. She is taking over creative leadership from David Kenyon, who has been in the role for 10 years and is moving into a new role as director of strategy, leading the discipline at the agency.

Sahni is coming off of three years as VP and ECD at GTB’s Toronto office, where she managed all the retail, social and service creative for Ford Canada. She previously managed both Vice Media and Vice’s in-house ad agency Virtue.

Peter Shier, president of Naked, says Sahni’s hiring adds to its creative bench and capabilities, as well as a track record of mentorship, a priority for the company. Meanwhile, Kenyon’s move to the strategy side, he says, makes sense because of his deep knowledge of its clients, which have included Ancestry and The Globe and Mail.

Digital Ethos opens a Toronto office

U.K. digital agency Digital Ethos is pursuing new growth opportunities in North America by opening a new office in Toronto.

Though it didn’t disclose them, the agency has begun serving a number of North American clients, and CEO/founder Luke Tobin says the “time was right to invest in a more formal and actual presence in the area.” whose services include design, SEO, pay-per-click, social media, influencer and PR,

This year, the agency’s growth has also allowed it to open an office in Hamburg, Germany, though it also has remote staff working in countries around the world.

Moray Hickes was the company’s first North American hire as VP of sales, tasked with business development in the region.