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Copyright

Q: Lookalike agency - legal considerations

If someone wants to set up a lookalike agency are there any special legal considerations of which they should be aware?

A: If the person whom the artist is impersonating is dead, there is no problem but if he is alive the important thing is to make sure that there is no possibility of anyone seeing the act believing that the impersonator is in fact the real person being impersonated because if that were the case then the impersonator would run the risk of a claim for 'passing off' or fraud by the person being impersonated.

Usually it is obvious from the circumstances - such as the way the act is introduced or advertised or by the reputation of the impersonator (for example Rory Bremner) - that the character or characters concerned are being impersonated but it is possible to conceive of circumstances where this is not the case and where the impersonation is so good that members of the public are genuinely deceived, which will be a matter of evidence in case of dispute.

So far as a lookalike agency is concerned, where the agency is genuinely acting only in the capacity of an agent for a disclosed principal, then in the absence of any wrongdoing (such as misrepresentation) by the agency, there will be no liability on the agency for any deception on the part of its principal. If, however, the agency is itself acting as a principal in supplying the lookalike artist to the promoter, then the agency must take the appropriate steps to make it clear where impersonation of a live person is involved that it will be an impersonation by a lookalike.

For claims by one lookalike artist against another in passing off, reference may be made to my article in The Stage dated June 8, 1995 (see ‘Passing off - Proving it’ in Copyright) from which it will be noted also that there is no copyright in a performance or in the subject of an impersonation. Accordingly, there is nothing to stop any person impersonating another for entertainment purposes, provided the fact of impersonation is made clear and no deception is involved.

Care must be taken by the impersonator in the course of impersonation not to do or say anything which may be interpreted as defamatory of the person who is being impersonated, which means not doing or saying anything which is likely to bring such person into hatred, ridicule or contempt or which disparages his reputation. Where caricature or burlesque is involved, the dividing line between what is permissible and what is not can sometimes be a very fine one indeed but that is another topic for another day.

First published March 2002