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Legal Eagle

Copyright

Q: Passing off - voices

I wonder if you could offer advice on the impersonation of celebrity voices in radio advertising? As the impersonator, would it be possible that action could be taken against you by the celebrity?

A: There is no copyright in a voice. If your natural speaking voice (whether distinctive or not) happens to be like that of another well-known person and you use it without any intention or desire to impersonate them or to deceive your listeners into thinking that your voice is that of the person concerned, then you may be in the clear.

However, if you and/or the advertiser and/or the broadcaster know or ought to know that your voice will be or is likely to be mistaken for that of the person you are imitating, and make no attempt to dispel such an impression (which will be a matter of evidence), then an action may lie at the suit of the aggrieved person on several grounds as follows:

1. The most likely cause of action is for 'passing off', which requires there to be a misrepresentation by a trader or professional person in the course of trade or profession to prospective customers or consumers of goods or services, calculated or likely to cause damage to the business or goodwill of the aggrieved party and causing actual damage to that business or goodwill. The application of such a cause of action to unauthorised advertising or product endorsement by celebrities is a developing area of the law. At present the aggrieved party must show that he or she is in the business of earning money from the use of his or her identity in this way so as to establish that such identity has goodwill value as part of a business enterprise. Otherwise no action for passing off will apply. Likewise, the law of privacy has not yet developed sufficiently to give a good cause of action in the circumstances which you describe but is developing along lines which may do so in the not too distant future.

2. Depending upon the nature of the product and the advertising copy, and the reputation of the celebrity who is being impersonated, it could give rise to an action for defamation or - if the statement is not defamatory but is nevertheless damaging to the celebrity's business or profession - injurious falsehood. An example of this would be impersonation of the voice of a well-known orthodox Jewish vegetarian to advertise pork sausages. Clearly, some voices are more distinctive and recognisable than others - Sean Connery and James Stewart come to mind - but even if the impersonated voice were to be recognised only by comparatively few family and friends, that would be sufficient, bearing in mind that, however ordinary, most of us tend to recognise the voices of friends and acquaintances on the telephone before they have identified themselves.

3. An action may lie for the tort of deceit which requires a false representation of fact by word or conduct in the knowledge that it is untrue and intending that it be relied upon and which is in fact relied upon by the aggrieved party who, in the circumstances of your case, would have to be someone who bought the product or service being advertised because of the belief that it was endorsed or recommended by the celebrity whose voice was being impersonated.

4. A good cause of action might lie under section 2(1) Misrepresentation Act 1967 by someone claiming that he or she was induced (by the advertiser, not the celebrity) to enter into a contract to purchase the product or service being advertised in reliance on the misrepresentation concerned.

5. Possibly it could give rise to a criminal prosecution for fraud or for obtaining a pecuniary advantage by deception if the advertisement could be shown to have resulted in profit to the advertiser by reason of the impersonation. There is, after all, an element of dishonesty in an impersonation of the kind you describe. It may be thought that there is little difference between forging someone's signature and impersonating someone's voice if, in both cases, it is unauthorised, undisclosed, for personal gain and with intention to deceive.

Finally, for the sake of completeness, I would mention that the British Codes of Advertising and Sales Promotion issued by the Committee of Advertising Practice under the auspices of the Advertising Standards Authority contain a number of precepts which would be violated by conduct of the kind you describe.

This includes an exhortation for advertisers to obtain written permission in advance if they portray or refer to individuals in any advertisement and that fictitious endorsements should not be presented as genuine testimonials and that all sales promotions should be legal, decent, honest, truthful and seen to deal fairly and honourably with consumers and not be misleading.

First published December 2001