And on the 7th day God created…Intellectual Property rights?
Ok, well the Vatican might not be claiming that they are the holy keepers of intellectual property rights, but earlier this year, the city-state surrounded by Rome, decided to put its foot down on how and when the likeness of Pope Francis, the 266th Pope of the Catholic Church, is used.
From candles to bobble-heads, Pope Francis’ likeness can be found on a wide-range of consumer goods. Some products are more savoury than others. Seriously, “The Pope Toaster” actually lets you toast the Pope’s face into your bread. Using the Papal imagery to market goods is nothing new. The difference now, at least in the Vatican’s eyes, is that new media has created a situation in which the dissemination of un-sanctioned material has simply gotten too fast to keep up with. We now live in a Shopify, eBay, and Etsy world that allows entrepreneurs to sell their products exceptionally fast.
In Canada, there is a common law tort for appropriation of personality. It protects against the unauthorized use of an individual’s persona. For these purposes, one’s “persona” is meant to include someone’s physical appearance, (as depicted in a photograph or some other medium), their name or their voice. Whenever you see a famous athlete’s face on a box of Wheaties, this athlete and their legal team would have negotiated an endorsement agreement which permits the product maker, in this case Wheaties, to use the athlete’s persona to market its goods. The level of compensation offered to the athlete would depend on the producer of the products estimation on how much value the eventual consumer places in that athlete’s endorsement of a particular product. The tort of appropriation of personality is in place so that an athlete or celebrity or public figure is in control with how their likeness is used. For example, it wouldn’t make sense to have an actor who is well-known as an anti-gun lobbyist to be plastered on boxes of ammunition without their approval.
The Pope case is interesting one, not only because of the undertaking involved in reeling in the use of Pope Francis’ image, but also because of the question of enforcement. The Associated Press reported earlier this year that the Vatican is now investigating what legal mechanisms are available to deal with this matter. While the Pope has every right, like all people who live in jurisdictions with use of persona laws, to control how his likeness is used, it will be very interesting to watch how, if at all, the Vatican decides to enforce these rights.