Tim Horton was a National Hockey League all-star player who died in a tragic motor vehicle accident in 1974. In 1964, he and a partner, Ronald Joyce, established a donut franchise that to this day remains highly successful. Upon his death, Joyce bought the remaining shares in the donut company from Hortonms widow. At that time, Joyce and others established a childrenms foundation in Hortonms name that raised funds by various endeavours including the commissioning of portraits of Horton.
In 1991, the Foundation engaged Ken Danby to paint a portrait of Horton. Danby is a distinguished Canadian artist renowned for his portraits of sports figures. The portrait would be displayed in franchised stores, with the proceeds from the sale of posters being used to support the Foundationms activities.
Over the years, Joyce and Hortonms widow had a "falling out," and since that time there has been much litigation between them. In this particular action, Mrs. Horton claimed that her late husbandms personality was misappropriated through Danbyms work (Danby was not sued). She argued in court that as a result of this, her husbandms estate had lost a marketing opportunity.
The Ontario judge hearing the case began his analysis by noting that the donut franchise, which to this day is named "Tim Hortonms," was launched with a view to exploiting Hortonms personality. In this regard, the judge said:
"the commercial personality of Tim Horton was one which was licensed to the business...since its inception... I do not see how the hanging of the portrait in stores which already represents the commercial personality of Tim Horton raises a triable issue that amounts to a lost marketing opportunity for the estate."
The judge could have stopped there, but went on to apply a broader analysis. It is this analysis that makes the case most noteworthy. The judge in the Horton cited as legal precedent the recent Ontario case involving Glen Gould, in which the noted pianistms estate was unsuccessful in its attempt to prevent the sale of an unauthorized book about Gouldsthe estate argued that the book appropriated the personality of Gould. [As an aside, the Gould estate appealed that decision, and the Ontario Court of Appeal released its judgment in May 1998, upholding the lower court decision in all respects.]
In the Gould case, the court considered the limits on the protection that the law affords the right of personality. The court concluded that this right was unavailable where the activity in issue did not have a commercial interest per se, but had as its goal a public interest. Where such a public interest existed, the legal protection afforded the individual gave way to the larger societal interest. In the Gould case, the larger societal interest was the use of freedom of expression to enable the public to learn more about one of Canadams musical geniuses. In the Horton case, the judge noted that the Danby portrait had a charitable object since the proceeds from the sale of the limited edition prints went to support the Foundation.
The judge in the Tim Horton case concluded his decision as follows: