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Legal Eagle

Copyright

Q: Passing off - tribute artists

I recently heard the parents of the late Jim Morrison had taken court action against an act inspired by the Doors. What must tribute artists do to stay on the right side of the law?

A: The answer is relatively simple. If the subject of the tribute is still alive, make sure that it is clear to the audience, some of whom may be innocents abroad and unfamiliar with the subject, that you really are only performing as a tribute-artist and an impersonator and not "the real thing". Otherwise you may face an action for passing-off or injurious falsehood, particularly if your make-up and outward appearance makes you so closely resemble the subject as to be virtually indistinguishable from him.

Also, if the subject is still alive, ensure that your act is not defamatory of him, so far as content is concerned, eg by putting into his purported mouth words, which, if actually spoken by him, would reflect badly on his reputation and profession, thereby possibly implying by innuendo that he had or would willingly have uttered them, when in truth he might be aghast at any such suggestion. An example would be to pepper your tribute to a devout Christian noted for using only clean material, with the F-word and a mass of other vulgar, sacrilegious or sexually explicit epithets. You should also avoid using the subject's own copyright material, or indeed anyone else's, without permission.

I know what I have said above may leave you wondering how certain impersonators are able to get away with caricature impersonation of well-known politicians, members of the Royal family and other public figures, sometimes doing the precise thing which I am advising you to avoid. The answer is that, although it is a fine line to tread, caricature, lampooning and mockery are usually regarded as acceptable and not defamatory, particularly when targeted at politicians and others who put themselves in the public arena, provided that, either it is clear to the recipient members of the public that the material is intended humorously and is not to be taken seriously, or the innuendo in the material is fair comment on a matter of public interest. The danger in doing it where the subject is an entertainer is that it is not so easy to make any humorous intent clear and the fair comment defence is far less likely to apply, so it is better to avoid doing it at all than to run the risk of legal action and all that such action entails.

If the subject is dead, you need not worry about defamation, since the law is that no action lies for defaming a dead person. Also you can hardly be accused of trying to pass yourself off as 'the real thing'. However, the copyright point will still apply. I do not know on what facts or cause(s) of action the family of the late Jim Morrison rely but I suspect copyright is at the heart of it. Copyright ownership devolves on death, like any other asset of a deceased's estate, and is also both divisible and transferable during the copyright-owner's lifetime.

First published September 1st 2005