Celebrity voice-a-likes

An interesting UKNM question yesterday:

Basically what is the deal with using an impersonator to do celebrity voice-a-likes on a website?

In the UK there is no automatic right of "personality" (unlike other countries - such as Germany).

However the law does protect against "false endorsement" - through the law of 'Passing Off'.

So, if a consumer would get the wrong impression that (say) Motty was endorsing your service then you are likely to be held to be passing off.

Passing off occurs where there is:

1. a trading reputation on the part of the claimant (such as the Celebrity);

2. a misrepresentation that deceives or makes the public believe that the defendant is associated with or endorsed by the claimant and (such as the voice over on a site that promotes a service making a consumer believe the claimant endorses or supports the service or goods);

3. damage as a result (which includes loss of income).

So if the public believes that the Celebrity is endorsing the website and the celebrity believes he has suffered damage as a result (which could be that he would normally get a fee for that endorsement), he can bring a claim for passing off and sue for damages / injunct.

The key is therefore to make absolutely clear that it is an impersonator.

The confusion / erroneous belief on the part of the consumer has to be reasonable (the moron in a hurry does not count). So one suggestion would be to make the impersonations obvious.

In other words, make it very difficult for anyone to believe that you are making a misrepresentation and saying (or implying) something that isn't in fact so.

There is also a separate consideration and that is that the ASA and other relevant regulatory bodies have their own rules about false endorsement.

Incidentally it is worth mentioning that the circumstances of the use are also important. If for example it is a satirical site where there is no likelihood that someone would believe there to be endorsements etc (i.e 2d TV or Spitting Image) then it is a different matter.

Topic:
18 April 2008 by Alex Chapman
Alex Chapman

Alex is a partner with Sheridans and a leading lawyer in the interactive and digital media industry with particular expertise in intellectual property matters.

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