For those with intellectual property (“IP”) rights, it can be helpful to understand how those rights operate and how they are enforced. Income streams are often derived from licensed use of IP, through royalties, and where those income streams continue posthumously a well-considered estate plan is crucial.
Most typically, one might think of copyrights, patents, and trademarks when contemplating sources of royalties for IP. Another category is “personality rights”, or what are sometimes known as “rights of publicity”. Scarlett Johansson’s legal dispute with OpenAI over digital mimicry of her voice is a recent example of the latter.
For the highest-paid dead celebrity of 2025, Michael Jackson, royalties form the backbone of his earnings and, unlike his contemporary, Prince, the King of Pop planned well for his posthumous financial success.
You should, too.
Personality Rights
In contemplating IP, let’s first consider personality rights. These rights underpin what is known as the tort of “misappropriation of personality,” where, generally, the use of one’s name, likeness, or voice, is used without permission.
Prominent examples of such misappropriation can be found in California case law, including Midler v Ford Motor Co., 849 F.2d 460 (9th Cir 1988), where the “distinctive voice” of the “celebrated chanteuse”, Bette Midler, was found to have been “deliberately imitated in order to sell a product”, and Waits v Frito-Lay, Inc., No 90-55981 (9th Cir 1992), where Tom Waits’ own distinctive voice was similarly imitated for commercial gain, such that consumers were likely to be misled “into believing that Waits endorsed SalsaRio Doritos.”
The tort has existed in the Canadian common law since 1974 and, in Hategan v Farber, 2021 ONSC 874, its elements were helpfully summarized:
- use of another’s personality;
- without consent;
- for commercial gain.
Per Justice Lederman in Gould Estate v Stoddart Publishing Co., [1996] 30 OR (3d) 520 (ON SC), there is an emphasis on the protection of “the commercial value of a person’s celebrity status […] akin to copyright or patent,” the importance of “celebrity status” having been affirmed more recently by Justice Diamond at paragraph 343 of Konstan v Berkovits, 2023 ONSC 497 (CanLII).
From an estates perspective, Justice Lederman also found in Gould that personality rights can be passed on pursuant to section 2 of the Succession Law Reform Act, RSO 1990, c S-26.
Copyrights, Patents, and Trademarks
Now, turning our attention to copyrights, patents, and trademarks, a threshold question is: when do these rights expire?
Of course, when IP rights expire, entitlement to any royalties deriving from those rights also expire.
Copyright in Canada generally expires at the end of the year marking the 70th anniversary of the author’s death, and protects original literary, musical, dramatic, and artistic works from reproduction, adaptation, and distribution. Meanwhile, the “moral rights” of the author, including the right of anonymity, the right of association, and the right of integrity are inalienable unless otherwise waived. The provisions of the Copyright Act govern, including on questions of enforcement; it is worth noting that registration of a copyright is possible but not strictly necessary – the mere act of creation gives rise to the right.
Much the same as copyrights, patents are governed by the Patent Act. Generally, patents filed in Canada on or after October 1, 1989, last for a maximum of twenty (20) years from the filing date of the patent application, subject to various considerations, including annual maintenance fees, the provisions of the patent term adjustment system introduced January 1, 2025, and special provisions relating to pharmaceutical patents.
Unsurprisingly, trademarks are governed by the Trademark Act. Common law rights to use of a trademark in Canada arise on established use of a word, phrase, symbol, design, or some combination of these elements, which is used to distinguish the goods or services of one party from those of others. Similarly to copyrights, trademarks can be registered, but need not be. The advantage to such registration, however, is secure, exclusive use of such marks across Canada for periods of 10 years at a time which periods are renewable indefinitely.
Key Takeaway
In recent news, the Human Artistry Campaign’s “Stealing Isn’t Innovation” movement has seen an open letter circulate advocating for “ethical” collaborations between artists and AI developers. With over 800 signatories, including Scarlett Johansson, the underlying concerns expressed in the letter very much concern IP and the future of IP rights.
As one can see, these are not simple concerns. IP rights and royalties deriving from them are meeting with the counterwinds of the AI revolution. The Campaign’s message is an important one, and the future of IP in an AI world is dependent on a continued dialogue. Posthumous rights and royalties can be planned around, but they cannot be preserved without continued judicial and legislative oversight of evolving questions as to their ethical use.
This blog post merely serves as an overview of the topic. Those with IP rights to consider as part of their estate plan or an existing estate administration should engage the services of a skilled estate lawyer, to ensure their interests are properly considered and preserved.
At Mills & Mills LLP, our lawyers regularly help clients with a wide range of legal matters including business law, real estate law, estate law, employment law, health law, and tax law. For over 140 years, we have earned a reputation amongst our peers and clients for quality of service and breadth of knowledge. Contact us online or at (416) 863-0125. The material provided through the Mills & Mills LLP website is for general information purposes only. It is not intended to provide legal advice or opinions of any kind.
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