judicial music

[Ron Davis <rdavis@chass.utoronto.ca>]

With advance apologies for the length of this message, I am happy to share
with you the full text of The Honourable Mr. Justice Lederman's decision in
_Gould Estate v Stoddart Publishing_ delivered September 20, 1996.

This is an elegant and intelligent decision that puts the dodo gatekeepers
of the Gould estate in their place. Will they stay put? Naaaah. 

The decision harmonizes law, art, decency and commerce, while shooing off
the tone-deaf dissonances those blinkered Philistine gatekeepers try to
introduce.

I do not know if an appeal has been commenced. 

Ron

PS- None of my darts are intended for Christopher J. Kvas and Nancy A.
Miller, the well-regarded and estimable counsel for the estate. 


_____________________________________


                            Between
    Stephen Posen, Executor and Trustee of the Last Will and
  Testament of Glenn Gould, deceased, and Glenn Gould Limited,
                        plaintiffs, and
   Stoddart Publishing Co. Limited, The Canada Trust Company,
  Executor and Trustee of the Last Will and Testament of Jock
        Carroll, deceased, and Angus Carroll, defendants
                          And between
    Stephen Posen, Executor and Trustee of the Last Will and
         Testament of Glenn Gould, deceased, plaintiff
   Stoddart Publishing Co. Limited, The Canada Trust Company,
  Executor and Trustee of the Last Will and Testament of Jock
        Carroll, deceased, and Angus Carroll, defendants

                      [1996] O.J. No. 3288
           Court Files:  95-CQ-62384 and 95-CU-92931

          Ontario Court of Justice (General Division)
                          Lederman J.
                    Heard:  August 20, 1996.
                 Judgment:  September 26, 1996.


Counsel:
     Christopher J. Kvas and Nancy A. Miller for the
          plaintiffs.
     Gordon E. Wood for the defendants.

     LEDERMAN J.:--

Background

[para1]     In 1956, Glenn Gould ("Gould"), then a young
concert pianist, was interviewed by Jock Carroll ("Carroll")
for an article in Weekend Magazine.  They talked on a variety
of occasions and in numerous venues, including Carroll
accompanying Gould on a vacation to the Bahamas.  During this
time, Carroll took approximately 400 photographs of Gould and
copious notes, including some tape-recordings, of their
conversations.  Certain of these photographs and comments of
 Gould were used in the magazine article.  Nearly forty years
later, in 1995, Carroll published through Stoddart Publishing
Co. Limited a book entitled "Glenn Gould:  Some Portraits of
the Artist as a Young Man".  Gould had died in 1982 and
Gould's Estate did not authorize its publication or receive
royalties from the book.

[para2]     The book makes use of over 70 of the original 400
photographs and draws very extensively on the conversations
that Carroll recorded back in 1956.  The text of the book is
largely comprised of extracts from these conversations.  It is
undisputed that Carroll is the owner of the copyright in the
photographs.  Gould's Estate, however, in these two actions,
seeks damages claiming (i) that use of the photographs amounts
to the tort of appropriation of personality, the cause of
action for which may be asserted by the Estate; and (ii) that
copyright in the oral conversations recorded by Carroll rests
with Gould (now his Estate) and as such the conversations may
not be used without the permission of the Estate.

The Photograph Action

[para3]     Apart from using the photographs for a story in
Weekend Magazine, there was no discussion among Carroll, Gould 
or Gould's agent, Walter Homburger ("Homburger"), as to their
further unrestricted use.

[para4]     In 1956, Homburger invited Carroll to take
pictures of, and do a story on, Gould and it was apparent to
Carroll that Gould and his agent were anxious to generate
exposure for this up and coming young artist.  The photos and
interview took place one year after Gould's major U.S. concert
debut, less than one year after his first U.S. record release
and the same year as a major North American concert tour.
Given the number of photographs taken, Carroll was of the view
that Gould would have been delighted if Carroll used them in
subsequent publications so as to create further publicity for
him.  At no time during his life, did Gould or anyone on his
behalf ever take the position that he had the right to
restrict or control the use of these photographs.  On this
basis, the defendants say that Carroll was free to use the
photographs in any manner he saw fit.

[para5]     On the other hand, the Gould Estate argued that it
was well known that Gould was an intensely private individual
who guarded his privacy.  He took great care with the
management of his personal image and reputation, and was
scrupulously careful about the quality of materials which were
released under his name, or projects in which he participated.
He has been referred to as "Canada's own Greta Garbo".
Homburger, in his affidavit, stated that Gould had a keen
business sense and a well-developed ability, even as early as
1956, to manage his own reputation and image.  It is argued
that the court should infer that, apart from the Weekend
Magazine article, Gould would not have given a general licence
to Carroll to publish the photographs and his sayings at some
future time without first obtaining Gould's approval.

[para6]     If Gould has a proprietary right to his
personality, then the onus is on the defendants to show that
Carroll had permission to appropriate that right by publishing
the photographs of Gould.  The onus should not be on the
holder of the right to prove that he had placed restrictions
on the exploitation of his own property.

[para7]     The first question should then be:  Did Gould in
fact have any proprietary rights in his image, likeness or
personality which have been appropriated by the publication of
the photographs in the book?

     i)  The Tort of Appropriation of Personality

[para8]     In Ontario, the common law tort of
misappropriation of personality was first articulated by Estey
J.A. in the Court of Appeal in Krouse v. Chrysler Canada Ltd.
et al. (1973), 40 D.L.R. (3d) 15.  While no formal definition
of the tort was offered, he stated at pp. 30-1:

          ... there may well be circumstances in which the
     Courts would be justified in holding a defendant liable
     in damages for appropriation of a plaintiff's
     personality, amounting to an invasion of his right to
     exploit his personality by the use of his image, voice,
     or otherwise with damage to the plaintiff ... .

[para9]     In Athans v. Canadian Adventure Camps Ltd. et al.
(1977), 17 O.R. (2d) 425, Henry J., citing Krouse, supra,
stated at p. 434:

          ... 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.

[para10]     In Joseph v. Daniels (1986), 11 C.P.R. (3d) 544
(B.C.S.C.), Wallace J. also gave recognition to this fact,
stating at p. 549:

          ... The cause of action is proprietary in nature and
     the interest protected is that of the individual in the
     exclusive use of his own identity in so far as it is
     represented by his name, reputation, likeness or other
     value.

[para11]     The same type of tort, usually under the name
"right of publicity", is also well-recognized in the United
States.  First coined in Haelan Laboratories, Inc. v. Topps
Chewing Gum, Inc., 202 F.2d 866, 868 (2nd Cir. 1953), "right
of publicity":

     has since come to signify the right of an individual,
     especially a public figure or a celebrity, to control the
     commercial value and exploitation of his name and picture
     or likeness and to prevent others from unfairly
     appropriating this value for their commercial benefit.
     (see Estate of Presley v. Russen, 513 F.Supp, 1339 (U.S.
     Dist. Ct. D.N.J. 1981)).

[para12]     The Gould Estate submits that the book in
question is a compilation of photographs of Gould and the act
of selling the book constitutes commercial exploitation.
Accordingly, it argues that this amounts to unlawful
appropriation of Gould's personality.

[para13]     The few Canadian cases dealing with this tort
have generally involved situations in which the name or image
of an individual enjoying some celebrity status has been used
in the advertising or promotion of the defendant's business or
products.  (Note that Joseph, supra, was decided on slightly
different grounds.  There it was held that since it was not
possible for the viewer to identify the person in the
photograph, as only his torso was depicted, there could be no
appropriation of personality.)

[para14]     Generally then, there has been an implication
that the celebrity is endorsing the activity of the defendant.
This contextual factor seems to have been an important
underlying consideration in the courts' reasoning.  In Krouse,
supra, for example, Estey J.A. pointed out, at p. 29:

          ... Here the photograph was not used in such a way
     as to associate the respondent with the commercial
     enterprise or production of the Spotter [the name of a
     product], a fact which is not without legal significance.

Similarly, in Athans, Henry J. was concerned with whether the
material in question had "the effect of establishing any
connection in the minds of the relevant public between Mr.
Athans and the [summer] camp" (p. 436).  It should be pointed
out that in Athans, supra, damages were ultimately awarded
despite the judge's finding that people viewing the material
in question would not conclude that the plaintiff was actually
endorsing the defendant's waterskiing school.  Instead, the
plaintiff recovered on the basis that:

          ... [t]he 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.  [p. 437]

While at first glance this decision may seem to support the
present defendants' broad interpretation of commercialization,
the decision is consistent with the endorsement context.
Athans was a situation where an identifiable "representational
image" was utilized by a waterskiing school in the school's
promotional brochure.  Therefore, on the basis of these
Canadian authorities it would seem open to the court to
conclude, on a contextual basis, that the tort of
appropriation of personality is restricted to endorsement-type
situations.

[para15]     More broadly, it also seems clear that in
articulating this tort the court must be mindful of the public
interest.  In Krouse, supra, the Ontario Court of Appeal
explicitly stated at p. 30:

     Progress in the law is not served by the recognition of a
     right which, while helpful to some persons or classes of
     persons, turns out to be unreasonable disruption to the
     community at large and to the conduct of its commerce.

While not explicitly offering any principles that ought to
guide the development of this tort, the Court at p. 30 did
warn:

          The danger of extending the law of torts to cover
     every such exposure in public not expressly authorized is
     obvious.

[para16]     The U.S. courts have similarly recognized the
necessity of limits on the right of personality.  These limits
are usually discussed in terms of First Amendment
considerations:  "the scope of the right of publicity should
be measured or balanced against societal interests in free
expression" (Presley, supra, p. 1356).  In Presley, supra, the
United States District Court (Brotman D.J.) stated at p. 1356:

     Thus, the purpose of the portrayal in question must be
     examined to determine if it predominantly serves a social
     function valued by the protection of free speech.  If the
     portrayal merely serves the purpose of contributing
     information, which is not false or defamatory, to the
     public debate of political or social issues or of
     providing the free expression of creative talent which
     contributes to society's cultural enrichment, then the
     portrayal generally will be immune from liability.  If,
     however, the portrayal functions primarily as a means of
     commercial exploitation, then such immunity will not be
     granted.

Accordingly, the right of publicity has not been successfully
invoked in cases where the activity in question consists of
thoughts, ideas, newsworthy events or matters of public
interest.  In this regard, it is important to note that:

     the scope of the subject matter which falls within the
     protected area of the 'newsworthy' or of 'public
     interest' extends far beyond the dissemination of news in
     the sense of current events and includes all types of
     factual, educational and historical data, or even
     entertainment and amusement. (Current Audio Inc. v. RCA
     Corp., 337 N.Y.S. 2d 949 (Sup.Ct. 1972) at 954-56)).

[para17]     Conversely, the right of publicity has been
upheld in situations where famous names or likeness are used
'predominately in connection with the sale of consumer
merchandise or solely for purposes of trade -- eg. merely to
attract attention" (Presley, p. 1358).  As a result, Elvis
Presley posters, pewter replicas of a statue of Elvis Presley,
a "Howard Hughes" game which included Hughes' name and other
biographical information, and a board game utilizing the names
and biographies of famous golfers, have all been found to
infringe the right of publicity.  (see Presley, supra, p. 1358
fn 19).  All were found to be commercial products which were
not vehicles through which ideas and opinions are regularly
disseminated.

[para18]     While Canada does not have a constitutional
provision akin to the First Amendment which is applicable to
the private law, no principled argument has been advanced to
suggest that freedom of expression considerations should not
animate Canadian courts in identifying the public interest and
placing limits on the tort of appropriation of personality.
Indeed, freedom of expression would seem to be a compelling
and reasonably coherent basis for defining the "obvious" need
for limits noted by Estey J.A. in Krouse, supra.

[para19]     In the end then, and perhaps at the risk of
oversimplifying, it seems that the courts have drawn a 'sales
vs. subject' distinction.  Sales constitute commercial
exploitation and invoke the tort of appropriation of
personality.  The identity of the celebrity is merely being
used in some fashion.  The activity cannot be said to be about
the celebrity.  This is in contrast to situations in which the
celebrity is the actual subject of the work or enterprise,
with biographies perhaps being the clearest example.  These
activities would not be within the ambit of the tort.  To take
a more concrete example, in endorsement situations, posters
and board games, the essence of the activity is not the
celebrity.  It is the use of some attributes of the celebrity
for another purpose.  Biographies, other books, plays, and
satirical skits are by their nature different.  The subject of
the activity is the celebrity and the work is an attempt to
provide some insights about that celebrity.

[para20]     Adopted to the present case, the book in question
contains 26 pages of text by Carroll together with photographs
depicting Gould in posed and spontaneous moments at the
beginning of his concert career.  I agree with the comment on
the overleaf:

     They capture the passion and brilliance of Gould as
     pianist, the solitude of Gould as artist and the boyish
     nature of Gould as a young man.

Although it is primarily through Gould's own images and words,
this book provides insight to anyone interested in Gould, the
man and his music.  The author added his own creativity in
recounting his time spent with Gould and in making decisions
about which photographs and text to use and how they should be
arranged to provide this glimpse into Gould's solitary life.
There is a public interest in knowing more about one of
Canada's musical geniuses.  Because of this public interest,
the book therefore falls into the protected category and there
cannot be said to be any right of personality in Gould which
has been unlawfully appropriated by the defendants.

     ii)  Survivability of the Right of Publicity

[para21]     Although not necessary to the decision in view of
the above finding, the issue had arisen as to whether the tort
of appropriation of personality survives the death of the
individual and I am impelled to make some comments about this.
Of those U.S. jurisdictions which have considered the matter,
the substantial majority recognize that the right of publicity
is devisable and descendible.  It also seems clear that the
modern trend is toward this recognition (see Jim Henson
Productions v. John T. Brady & Assoc., 867 F.Supp. 175
(S.D.N.Y. 1994), particularly at p. 189)).

[para22]     The defendants place some reliance on the fact
that in the three provincial Privacy Acts which provide for a
cause of action for the appropriation of personality
(Newfoundland, Saskatchewan and British Columbia), the right
of action is extinguished by the death of the individual whose
rights are alleged to have been violated.  However, this
factor is not persuasive in the case at bar.  In creating a
statutory right of action, the legislature may obviously
impose statutory restrictions on that cause of action.  Here
though, the case is grounded in a common law cause of action.
As such it is not constrained by the restrictions which apply
to the statutory right of action.

[para23]     A more theoretical approach to distinguishing the
Privacy Acts can be found in U.S. law.  There, several cases
have recognized a distinction between the right of privacy and
the right of publicity (See Henson, supra, p. 188).  The
former is considered a personal tort and is designed to
protect an individual's interest in dignity and peace of mind.
The right of publicity, on the other hand, protects the
commercial value of a person's celebrity status.  As such, it
is a form of intangible property, akin to copyright or patent,
that is descendable.  Given that the Canadian statutory rights
of action are found in Privacy Acts, it would certainly seem
that, following the U.S. reasoning, whatever statutory
restrictions there may be on the rights of action for privacy
violations and unauthorized use of personality, they should
not be applied to the common law tort of appropriation of
personality.

[para24]     The right of publicity, being a form of
intangible property under Ontario law akin to copyright,
should descend to the celebrity's heirs.  Reputation and fame
can be a capital asset that one nurtures and may choose to
exploit and it may have a value much greater than any tangible
property.  There is no reason why such an asset should not be
devisable to heirs under s. 2 of the Succession Law Reform
Act, R.S.O. 1990, c. S.26.

[para25]     As a final comment on this topic, the U.S. cases
on both sides of the right of publicity debate have expressed
concern over whether there should be a durational limit on the
right of publicity after it is inherited (see Presley, supra,
1355 fn. 10, and Lugosi v. Universal Pictures, Cal., 603 P. 2d
425 (Sup. Ct. 1979) at p. 430).  For the present purposes
though, suffice it to say that Gould passed away in 1982, and
it seems reasonable to conclude that whatever the durational
limit, if any, it is unlikely to be less than 14 years.  The
protection granted by other intangible property rights such as
patents and copyrights is longer.  So, too, any durational
limit on Gould's right of publicity would not yet have
expired.

The Words Action

[para26]     The issue in this action is whether Gould, and
now his Estate, has copyright in the oral conversations which
occurred between himself and Carroll and form the essence of
the text in the book in question.

[para27]     It seems to be well-settled law that "copyright
in Canada is entirely a creature of statute" (see s. 63 of the
Copyright Act, R.S.C. 1985, c. C-42, as amended; Fly by Nite
Music Co. v. Record Wherehouse Ltd., [1975] F.C. 386 at 391
(F.C.T.D.); Compo Co. v. Blue Crest Music Inc., [1980] 1
S.C.R. 357).  As such, any claim that Estate may have must
fall within the provisions of the Copyright Act.

[para28]     Section 5(1) of the Copyright Act states that
"Copyright shall subsist in Canada in every original literary,
dramatic, musical and artistic work ...".  This phrase is in
turn defined in s. 2 as including "every original production
in the literary, scientific or artistic domain, whatever may
be the mode or form of its expression, such as compilations,
books, pamphlets and other writings, lectures ... ."  Lecture
is further defined in section 2 as including "address, speech
and sermon".  The plaintiffs submit that spoken words are
therefore clearly contemplated within the definition of
"literary works".

[para29]     This interpretation runs counter to judicial
decisions which have held that for copyright to subsist in a
work, it must be expressed in material form and having a more
or less permanent endurance.  (Canadian Admiral Corporation v.
Rediffusion Inc., (1954) 20 C.P.R. 75 at 86 (Exchequer Court
of Canada)).

[para30]     Thus, a person's oral statements in a speech,
interview or conversation are not recognized in that form as
literary creations and do not attract copyright protection:
Walter v. Lane, [1900] A.C. 539 at pp. 557-558, 559 (H.L.).
The person who makes notes or report of the speech is the
author of the report and obtains copyright in the report.
There is an exception for a mere scribe or an amanuensis who
simply writes an article from the dictation and as the servant
of another.  Such a scribe can claim no property in what he or
she so writes, for the writing belongs to the employer:
Walter v. Lane, supra, at p. 558.

[para31]     In Falwell v. Penthouse International, Ltd. et
al. (1981) 215 USPQ 975 (Virginia District Court), Reverend
Jerry Falwell alleged that Penthouse magazine, without his
consent, published an interview along with his name and
picture.  Among other things, Falwell made a claim for common
law copyright infringement.  The comments of the Court at p.
977 in denying Falwell's claim are just as apt in the context
of the instant case and provide an acceptable rationale for
excluding the spoken word from statutory protection:

          Plaintiff's claim of copyright presupposes that
     every utterance he makes is a valuable property right.
     If this were true, the courts would be inundated with
     claims from celebrities and public figures all of whom
     may argue that their expressions should also be afforded
     the extraordinary protection of copyright.  Such a result
     was never contemplated by the development of the law
     regarding common law copyright, and such a result would
     run counter to the firmly established constitutional
     guarantees of freedom of speech and of the press.

     ...

          ... However different or unique plaintiff's thoughts
     or opinions may be, the expression of these opinions or
     thoughts is too general and abstract to rise to the level
     of a literary or intellectual creation that may enjoy the
     protection of copyright.  Although the general subject
     matter of the interview may have been outlined in the
     reporters' minds prior to their meeting with plaintiff,
     the actual dialogue, including the unprepared responses
     of plaintiff, was spontaneous and proceeded in a question
     and answer format.  There is no defined segregation,
     either by design or by implication of any of plaintiff's
     expression of his thoughts and opinions on the subjects
     discussed which would aid in identifying plaintiff's
     purported copyrighted material.

          In the case at bar, plaintiff willfully and freely
     participated in the interview.  An interview with members
     of the media is not a private conversation.  Like a press
     conference, plaintiff in this action responded to
     questions in a spontaneous manner and not from a
     carefully prepared text or even from notes.  Moreover,
     plaintiff was aware that his comments were not made in
     the context of a private conversation but rather were
     destined expressly for dissemination to the public.

[para32]     Here too, the nature of the interview, conducted
in informal settings - at an empty Massey Hall, at the home of
Gould's mother and on vacation in the Bahamas - was such that
it was intended to be casual, to catch the spontaneity of
Gould when he was relaxing.  The conversation between the two
men was the kind that Gould would have with a friend.  Indeed
Gould and Carroll remained friends for a short while
afterwards.  Gould was not delivering a structured lecture or
dictating to Carroll.  Rather, Carroll engaged Gould in
easygoing conversation out of which emerged comments which
provided insights into Gould's character and personal life.
 Gould was making offhand comments that he knew could find
their way into the public domain.  This is not the kind of
discourse which the Copyright Act intended to protect.

Disposition

[para33]     There is no basis in law for the plaintiffs'
actions.  Accordingly, there will be summary judgment
dismissing both actions.  If the parties cannot agree, I will
fix costs of the actions including these motions after
receiving written submissions.

LEDERMAN J.

ronald d. davis | barrister and solicitor
54 brunswick avenue | toronto | ontario | canada m5s 2l7
Vox: (416) 929-2324 | Fax: (416) 929-1087
e-mail: rdavis@chass.utoronto.ca