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Legal Eagle

Copyright

Q: Passing Off - proving it

Recently, I read in The Stage that a lookalike artist was planning to sue a rival for passing off. How does one prove this?

A: There is no copyright in a performance (although there is a statutory right for a performer not to have his performance sound-recorded or filmed without his consent).

It follows that there is no copyright in the subject of an impersonation. Thus, there are, for example, many impersonators of celebrities such as Elvis Presley, none of whom has the right to stop the others impersonating the same subject in the same way. On the other hand if, for example John Smith impersonating Elvis Presley were to claim that he was Bill Brown impersonating Elvis Presley, then Bill Brown may have a good cause of action against John Smith for malicious or injurious falsehood, since the deception could hardly be claimed to be otherwise than dishonest and possibly harmful to the complainant.

An action would also lie in breach of the statutory moral right against false attribution. An action might also lie in such circumstances for the civil wrong of deceit or fraud if it can be shown to have resulted in some pecuniary loss. You ask specifically about "passing off". I do not think that an action would lie in passing off against a rival who pretended that his performance was that of someone else. Passing off is a cause of action based on copyright and, as I have said, there is no copyright in a live performance.

But since you have asked specifically about passing off. You may like to know that there are five characteristics which must be present for such a cause of action to succeed namely (i) misrepresentation (ii) made by a trader in the course of trade (iii) to prospective customers of his or ultimate consumers of goods or services supplied by him (iv) which is calculated to injure the business or goodwill of another trader or is reasonably likely to do so and (v) which causes actual damage to the business or goodwill of the complainant. Note, however, that there is no copyright in an idea and no right not to have one's business damaged by fair competition.

First published January 1995