The CBC has published a story about an author who wrote a novel based on a real-life act by a real-life musician (see www.cbc.ca/arts/books/story/2008/07/17/cellist-novel.html).

The musician’s photo appeared on the book cover. There are numerous mentions of the musician in the book; however, the author has asserted that because the musician played a silent role in the novel, no copyright has been infringed.

Amid the controversy, I want to discuss copyright issues arising from this case.

Recalling my other articles on copyright, there is no copyright on history, real-life events or ideas. Therefore, if an author were to write a book, fictional or not, about Elvis, the estate would not have claim to the book’s copyright. The author writes the book, and hence the author owns the copyright.

The musician’s life story had been widely reported world-wide. The musician cannot claim copyright for the book in question.

Things become a little bit murkier when it comes to using the musician’s photograph on the book cover. The photo in question is probably copyright-protected, but the copyright belongs to the photographer who took the photograph, not the musician.

Granted that the musician does not have any claim to the copyright of the book, or the photo, what other remedies are available to him?

One of the obvious remedies is the tort (i.e., civil wrong) of “misappropriation of personality.” To make the claim, the plaintiff (the musician) must demonstrate two things: (a) that the plaintiff has a distinct personality in the public eye, and (b) that the defendant has wrongfully to used the plaintiff’s personality for commercial gain.

The application of this tort to this case is not clear-cut. On one hand, there is definitely a commercial component in using the photograph of the musician. On the other hand, it is questionable whether the plaintiff has a distinct personality in Canada, and whether the use is wrongful.

Besides the above-mentioned remedy, I suggest an that it is a possible tort in using one’s photograph for commercial gain without permission. Among other private information, such as your home address and telephone number, you should be able to control who has access to it and who does not. Some provinces enacted privacy legislation to address this issue.