Is it OK to use copyrighted material in your demo?
What could happen if you use a script from an audition that you didn’t win for promotional purposes?
Can you perform a dead-on vocal impression of a celebrity but are curious about legal issues?
Find the answers to these questions and more in our interview with David R. Canton, Lawyer and Trade-mark Agent with Harrison Pensa LLP in London, Canada.
Voices.com Interview with Lawyer David R. Canton
VOX: Thank you David for joining me here on VOX Daily and for sharing your expertise with us. As a lawyer specializing in copyright and intellectual property there are a number of questions I’d like to ask you on behalf of our audience and community at Voices.com. Firstly, I’d like to ask you about copyright law. This is one of the hottest topics around and it affects all voice actors in one way or another when they are recording scripts, especially when recording and producing a voice over demo.
DAVID CANTON: First, some caveats to my responses. Laws vary by country, and even by state/province within countries. Legal answers always depend on the specific facts at hand, and small changes in fact can lead to different results. So my answers here are for general guidance and information only, and are not to be considered or relied upon as legal advice.
Another thing to consider is that rights owners vary greatly in their inclination and desire to enforce their IP rights. Some may not care, or may let violations slide on the basis that it is good publicity. Others may be overly aggressive and try to stop things that one is legally able to do.
VOX: Can a voice actor use the name of an established company such as McDonald’s, even their ad copy or slogans, in a voice over demo if they haven’t worked for that company or do not have permission expressly from the owner of the copyright to do so?
DAVID CANTON: In part this depends on whether the voice actor does this to mislead that he/she actually did the commercial. It would be a copyright violation to use the exact text of a real ad. Using a name or trade-mark technically may not be a trade-mark violation as the voice actor is not using it to sell the same wares or services of the company. But some famous mark owners get very aggressive about trying to prevent others from using their marks in any way.
The safest approach is to alter an existing ad sufficiently to avoid being accused of copyright violation over the ad, and use a fictional name.
VOX: Voice actors do auditions everyday at Voices.com and through other services. Usually a script is provided by the client that a voice actor can partially record for demonstration purposes. This allows the client to review the samples and get a better idea of how that person would sound representing their company.
Should that ad copy or script be considered “off limits” to voice actors if they don’t get the job? In other words, is it OK for a voice actor to use the audition spot they recorded as a sample of what they could do and post it publicly on the web or include it in demo materials that they send out to prospective clients or agencies?
DAVID CANTON: If the script is provided by the client, the best approach is to ask permission to use it as a sample and get that permission in writing. Indeed, that should be standard practice for the voice actor. In addition to removing all doubt, it shows a very professional approach that the client may like to see. It’s the same issue as Question 1. One factor here is that if the sample script is close to the final ad, the client may not want versions other than by its final voice choice to be floating around.
VOX: There have been a couple of instances where we have received complaints from clients who noticed that auditions submitted featuring their scripts had been used by talent who were not hired as promotional materials. Those voice samples were removed from the profiles of the talent in question and the client was pleased with those actions.
This may seem obvious, but would you advise that talent simply archive their auditions and not use the audio for other purposes, particularly promotional purposes that may endanger or misrepresent the company’s brand?
DAVID CANTON: Yes, that’s a wise approach. Again – the best approach is to always ask if one can use the audition for samples.
VOX: When does copyright infringement occur? Is there a fine line that is crossed when a certain amount of information is used, or is it any portion, regardless of how small?
DAVID CANTON: There is no precise answer to this. Small amounts are not considered infringing – what “small” means is subjective, and may depend in part on how central that part is to the whole. Keep in mind that copyright deals with the expression of the idea, not the idea itself. In other words, it prevents one from repeating the words; it does not prevent one from using the ideas or information contained in the words.
VOX: There is a misconception in our industry that it is OK to use copyrighted material without permission to provide prospective clients with a demonstration of what voice actors are capable of doing, although the audio may not necessarily be a true reflection of who they have actually branded or been hired by.
What is wrong with that concept and what are the possible consequences of doing so?
DAVID CANTON: In addition to the copyright issue, it would be misleading advertising to suggest that one has done certain work when they have not. That can lead to quasi-criminal charges. It also doesn’t do one’s reputation any good.
VOX: If we could, I’d like to move on to another aspect of voice over work. There is a sizable market for “sound alikes”, people who can manipulate their voice to sound convincingly like the voice of someone else. Oftentimes the hiring of a sound alike or person to do the voice match is required because a celebrity is either unavailable or too expensive to hire.
In the highest echelons of voice over, these legalities are looked after quite nicely because the stakes are too high to not observe the law, and they (producers), also have more money to bridge the gap than smaller companies do. In the world of non-union work, these same considerations are not necessarily observed due to factors mentioned above.
Could you please explain what the difference is, if there is one, between imitation and impersonation as it pertains to voice over recordings? Where is the line drawn and what are the legal implications?
DAVID CANTON: This is another one where the line is tough to draw. If it is an impersonation that misleads the listener to think they are hearing a real celebrity endorsement, then the real celebrity can take legal action. Theories include appropriation of personality, and passing off. There is some notion that one’s reputation is a property right. So anything that suggests a celebrity endorsement, and/or derives some commercial advantage for it, should not be done. If the voice is clearly an imitation or parody, and not the actual celebrity, it is less likely to cross that line.
VOX: Can someone legally imitate or impersonate another person, of high profile or otherwise, in a voice over recording without their prior written consent? If someone does this without consent, what are the potential legal outcomes?
DAVID CANTON: See answer to #6.
VOX: Does this also apply to celebrities or individuals who have died? Consider voice overs recorded that portray Elvis, Marilyn Monroe, Winston Churchill, and so on. Recently, there was a very high profile voice over professional, Don LaFontaine, who passed away (September 1, 2008) and he is mimicked quite often for his movie trailer voice (both before he died and presently). What kind of permission is required to make a recording portraying the deceased? Should royalties be going to their estates?
DAVID CANTON: Yes, estates can enforce those rights. It really comes down to whether the person is misleading who they are. Elvis impersonators and tribute bands, for example, are clearly not suggesting they are the originals. They do, however, need to comply with copyright by getting whatever permissions or rights are required to perform the songs.
If someone died a long time ago, it may be a smaller risk, as it would be harder to imagine, for example, that Winston Churchill would actually endorse an MP3 player.
The Don LaFontaine example may be different in that one can argue that he is not a celebrity that is being impersonated.
VOX: How do these same principles apply to the imitation of character voices such as Mickey Mouse, Bugs Bunny, Homer Simpson, The Little Mermaid (Ariel) or other character voices? Is there a shelf life for a character voice before it becomes part of the public domain or are these voices protected for as long as the creator or owner of the intellectual property maintains control?
DAVID CANTON: The issues are similar – it’s just that the owner of the rights are different. Copyright does have a fixed time span that varies according to jurisdiction – usually the life of the author plus several decades after that. Some countries have recently extended those time periods as a result of lobby efforts of the rights owners.
VOX: What can be done to curb infringement? What can we do as a marketplace to help spread awareness and develop an industry that respects copyright and intellectual property at all levels?
DAVID CANTON: Copyright is not an issue that is well understood. Many think copyright laws are too restrictive, while others want tougher laws. And the internet and digitization have made it extremely easy for people to violate copyright. At the same time, there are instances where copyright may technically be violated, but the practical reality is that there is no harm to the rights holder.
The best way to deal with it is to make people aware of what should not be done, and provide alternatives. In many cases, such as auditions, it’s very easy to simply ask. It’s also important for people to be above board and never mislead what they are doing, and what their experience is. In addition to being a legal risk, misleading customers or potential customers will only hurt one’s reputation.
Well, there are some answers for you! I promised that an interview would be published with a lawyer and here it is.
If you have anything that you’d like to share, you can add a comment below.
P.S. If you’d like to learn more about David Canton, you can visit his blog Canton.eLegal.ca.