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Privacy, Property and Personality: Civil Law Perspectives on Commercial Appropriation 0 521 82080 4 This page intentionally left blank vi 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 scope of intellectual property rights in personality, particularly questions relating to assignment, licensing, and post-mortem protection. H UW B EVERLEY-SMITH is a Solicitor in the Brands, Technology, Media and Telecommunications Department at Field Fisher Waterhouse in London. He is also the author of The Commercial Appropriation of Personality (Cambridge 2002). A NSGAR O HLY is 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` S L UCAS-SCHLOETTER is 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 Rights is 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 camʙʀɪdɢe uɴɪveʀsɪtʏ pʀess Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge cʙ2 2ʀu, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521820806 © Huw Beverley-Smith, Ansgar Ohly and Agne`s Lucas-Schloetter 2005 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. First published in print format 2005 ɪsʙɴ-13 978-0-511-13477-7 eBook (EBL) ɪsʙɴ-10 0-511-13477-0 eBook (EBL) ɪsʙɴ-13 978-0-521-82080-6 hardback ɪsʙɴ-10 0-521-82080-4 hardback Cambridge University Press has no responsibility for the persistence or accuracy of uʀʟs 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. Contents Preface page ix Table of cases xi Table of statutes xxv List of abbreviations xxx 1 Introduction 1 The commercial value of aspects of personality 1 Commercial and non-commercial interests 2 Personality, privacy and intellectual property 3 Competing doctrinal bases of protection 4 Synopsis 11 2 Property, personality and unfair competition in England and Wales, Australia and Canada 13 Introduction 13 Liability based on misrepresentation: the tort of passing off in English and Australian law 15 Liability based on misappropriation: the Canadian tort of appropriation of personality 35 Conclusions 46 3 Privacy and personality in the common law systems 47 Introduction 47 From property to inviolate personality 48 Inviolate personality and the accretion of proprietary attributes 52 Conceptions of privacy 53 Reconciling privacy and commercial exploitation 64 The scope and limits of the right of publicity 68 Privacy in English law 75 Conclusion 93 4 German law 94 Introduction 94 History 96 Substantive legal protection 105 Post-mortem protection 124 Assignment and licensing 129 Remedies 138 vii viii Contents 5 French law 147 Framework and history 147 Protection of economic interests 156 Protection of non-economic interests 167 Remedies providing for prevention or cessation of the infringement: injunctions 181 Remedies providing for legal redress 185 Transfer 191 6 Conclusions 206 Introduction 206 Common features and contrasts 207 The three basic models of protection 212 Property, intellectual property and personality 214 Privacy, freedom of expression and commercial appropriation under the European Convention on Human Rights 217 Conclusions: A gradual convergence? 224 Bibliography 227 Index 239 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 of distinguished academics, practitioners and judges in the 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 x Preface 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. Table of cases Australian cases Australian Broadcasting Corp.v.Lenah Game Meats Pty Ltd (2001) 185 ALR 1 88 Children’s Television Workshop Inc.v.Woolworths (New South Wales) Ltd [1981] RPC 187 23 Cognagra Inc v. McCain Foods (Aust.) Pty Ltd (1972) 23 IPR 193 16 Henderson v. Radio Corp. Pty Ltd [1969] RPC 218 7, 17, 21, 27, 28, 31, 35 Hexagon Pty Ltd v. Australian Broadcasting Commission (1975) 7 ALR 233 13 Hogan v. Koala Dundee Pty Ltd (1988) 83 ALR 187 25–6 Honey v. Australian Airlines Ltd (1989) ATPR 40–961, affirmed (1990) 18 IPR 185 18, 24, 28 Hutchence v. South Seas Bubble Co. Pty Ltd (1986) 64 ALR 330 18, 23 Moorgate Tobacco Co. Ltd v. Philip Morris Ltd (No. 2) (1984) 56 CLR 414 6, 13 Pacific Dunlop Ltd v. Hogan (1989) 87 ALR 14 18, 24, 33 Paracidal Pty Ltd v. Herctum Pty Ltd (1983) 4 IPR 201 18, 23 Pinky’s Pizza Ribs on the Run Pty Ltd v. Pinky’s Seymour Pizz & Pasta Pty Ltd (1997) ATPR 41–600 28 Sony Music Australia Ltd & Michael Jackson v. Tansing (1994) 27 IPR 649 39 Taco Bell Pty Ltd v. Taco Co. of Australia Inc. (1981) 42 ALR 177 27 Talmax Pty Ltd v. Telstra Corp. Ltd (1996) ATPR 41–535, 26, 31 Tenth Cantanae Pty Ltd v. Shoshana Pty Ltd (1987) 79 ALR 279 18, 24, 28, 35, 39 TGI Friday’s Australia Pty Ltd v. TGI Friday’s Inc. (1999) 45 IPR 43 27 Twentieth Century Fox Corp.v.South Australian Brewing Co Ltd (1996) 34 IPJ 225 26, 31 Uren v. John Fairfax & Sons Pty Ltd (1965–1966) 117 CLR 118 81 Victoria Park Racing and Recreation Grounds Co Ltd v.
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