Is it OK to use copyrighted material in your demo?
In this article
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 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. 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 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.
Best wishes,
Stephanie
P.S. If you’d like to learn more about David Canton, you can visit his blog Canton.eLegal.ca.
Comments
In my training I was advised to avoid using all references to companies I have not worked for so I keep the “companies” on my generic demo fictional to avoid any problems; an if in doubt don’t policy.
This post is great reference – thank you! The nuances relating to impersonation were especially interesting.
I think Mr. Canton may have misunderstood what goes on in our industry with copyrighted scripts used in demos. When a voice actor re-uses copy in this way, he is not necessarily representing that he *did* do the job; only that he *could have done* the job credibly.
I once heard a top-notch New York talent’s TV promo demo (on an agency reel) in which the name of one of the actors was mispronounced. Obviously that talent was not the “real” voice of that promo – and just as obviously, he could have been.
I agree that the wording of scripts should be changed, but I disagree that this could cause a real problem for a voice actor. In the US at least, the copyright holder is going to have to prove “harm”, and there simply is none. Otherwise every third-grader who said “I’m lovin’ it” in front of his class could be liable for infringement of McDonalds’ copyright.
Thank you for the comments so far.
Dan, with all due respect, I don’t think David misunderstands, however, I do believe that there are many interpretations in our industry of what is right, acceptable and wrong which is why I made of point of asking for legal advice from someone who has no vested interest in voice acting who could give an objective point of view. The information provided is quite sound and unbiased. This interview was meant to address all aspects of the industry regardless of station.
In the case of the talent mispronouncing a name in the voice over using copy that they didn’t actually perform, that mispronunciation, while making it obvious that the person did not record the official voice over (misleading), also detracts from what the promo was supposed to accomplish when originally produced with the actor’s name properly pronounced. While there are many people who could have recorded that voice over, in the end, there was one person who was chosen to represent the brand, the show and convey the message. Just my .02.
Would anyone else like to share their thoughts?
Best wishes,
Stephanie
Hi, Stephanie. No need to add the “due respect” to your opening: after 20+ years in this business and almost 30 years of marriage, I’m used to people disagreeing with me. 😎
There are two fundamentally different views of what a “demo” is. Is it a sampler of what the talent has done, or is it a showcase of what she is capable of doing? If we take the first view, then even fake spots created expressly for the demo are “misleading.” If only real projects can appear on one’s demo, breaking into voiceover will be much more difficult (since the newbie has no actual body of work to present).
No one can mislead without an intent to deceive, and since my view (apparently shared by the NY/LA agency that produced the above-mentioned tape) is that a demo is a showcase of my abilities, not a retrospective of my work, there is no such intent.
Thanks for the discussion. All the best to you and the Voices.com community in 2009.
The idea of contacting the company or person who requested the audition to ask permission is not really possible with online casting services – as contact information is not readily available – unless we were contacted directly.
It is much better to create your own copy if you need to enhance your demo with some specific “style” or “attitude.” If you are not a skilled writer, then consider using magazine ads as a basis for this (which is actually in direct opposition to another recent Vox Daily article). Certainly change names, point of view, features, etc. – but use the concept of the ads to jump start your writing.
Stay away from high-profile products or campaigns that are really familiar. (“priceless”)
I think there are several issues going on here and they have to be separated to get some clarity on what standard practice is in the voice over industry today.
I do casting, teach voiceovers, and produce demos in Los Angeles so I have my finger on the pulse of the latest trends.
Using fictional company names is a huge mistake. To any agent, casting service or client it’s an instant red flag that you are new in the business and have no body of work to present. I listen to hundreds of demos of voice talents each year and they all use real brand names. The top agents and casting people already know who did all those national and regional spots so of course they know that you didn’t do it. But if you use real products and copy then they have a benchmark to measure your performance against. Who knows? You might do it better!
Similarly, writing your own copy can weaken your demo. By writing your own copy you’re assuming that you are not only a talented voice performer but also a talented copy writer. That may be true but it isn’t the case for most voiceover talent. Remember copy writers at top agencies get six figure incomes because they can craft just the right words to highlight their clients products. Each product brand has it’s own vernacular and style that the copy writers create. There is a world of difference in the tone of a Taco Bell spot versus a Dennys spot or a Kia spot versus a Mercedes spot. So if your write your own material, it is very likely that you’ll write a spot they conveys all the information correctly but “just doesn’t sound right.” It’s likely the powers-that-be will unconsciously judge your performance based on your writing rather than your vocal skills.
I recommend using real copy with real brand names and editing the copy down to the size of a typical demo spot–8 to 15 seconds. Oh–and magazine copy doesn’t usually work because it often depends on the visual “hook” and headline of the print ad (ad agencies recognize that a different style of writing is required for radio, TV, print, billboards, etc.) So use real radio and TV ads edited to make them concise. (I tell people I’m the only person who bought Tivo to record commercials!)
By the way, voice actors in LA, who have a body of their own work in their demos, will add simulated commercials of other products to their demos (using real brand names and copy) in order to expand the range that they show and move into markets they aren’t being cast in. They would think of using fictional company names!
Now regarding copyright infringement. I’m not a lawyer and I don’t play one on TV. But… It’s kind of understood that the use of brand names and existing commercial copy in a demo is really incidental to the purpose of the demo. You’re not really advertising Shell gasoline with Shell’s copy, your demonstrating HOW you would advertise Shell gasoline if you were given the chance.
Finally regarding the use of AUDITION copy for a demo. THAT IS a major No-No! Material created for audition purposes has an inherent proprietary trade secret component that broadcast copy doesn’t have. If you put previously broadcast copy for Miller Beer into your demo Budweiser has heard the ad so there’s no harm. But if you use Miller Beer audition copy in a demo you may reveal the secrets of an ad campaign that Miller hasn’t released yet. Can you say Corporate Lawyers? So only use published copy not audition copy.
I hope this clarifies what the real-world trends are here in LA.
And in my best Forrest Gump voice: That’s all I have to say about that!
(celebrity voice impersonated)
Hi everyone,
Thank you for your comments and opinions 🙂
I agree that print ads could be used as the basis of inspiration but should certainly bear no resemblance to whatever it is that is created as the script for a demo. Your advice to stay away from high-profile products and campaigns is very good indeed.
Anyone else have something to share?
Best wishes,
Stephanie
If I may steal W2’s statements.
“It’s kind of understood that the use of brand names and existing commercial copy in a demo is really incidental to the purpose of the demo. You’re not really advertising Shell gasoline with Shell’s copy, your demonstrating HOW you would advertise Shell gasoline if you were given the chance.”
I believe the term you’re looking for is “proof of concept”, and you’re correct. While some might consider it to be bad form, it’s not considered to be a violation of law (actually it’s protected under the Bearne Convention for the Protection of Literary and Artistic Works, every copyright law has some reference or clause that also acknowledges this). That said, remember that people sue for pretty much anything, so there is always an inherent risk.
“Material created for audition purposes has an inherent proprietary trade secret component that broadcast copy doesn’t have.”
I’m curious about this comment, unless labeled as such what would a reasonable person do?
Because the answer to that is sketchy, information that is of concern is usually labeled as proprietary (of the commercial VO I do, about 1/5 have that label on the copy). That said, it’s bad form IMO to use audition copy for a demo when it’s easy to modify the copy to fit the needs of a demo. This is where a good demo producer earns his/her considerable fee because he/she will work with you to write or modify existing copy that is right for you.
Yeah, I can always jump in front of my mic at home, take out some copy, and whip up a demo. But a good producer is going to be able to come up with something that is uniquely mine, and mine alone. To me, that alone is worth the cost of admission.
Just my opinion, and much like armpits mine probably stink =-P
I honestly don’t even understand the “need” to ask most of these questions. Has there been some huge uprising in the world of demo production (and listening) of which I’m not aware?
Keep in mind, too, that ad agencies, as standard practice, will create demo spots for clients they don’t even have yet. Would all these questions apply to them? Of course not…what they’re doing is showing a prospective client what they’re able to produce and, hopefully, why they should be hired by that client.
A voiceover demo is the same thing.
As far as cost goes, questions of cost in terms of “what’s ok and what’s not” are fairly silly in a free market economy. There are plenty of people who are aware that some demo producers charge more than others. Sometimes you get what you pay for, sometimes you’re paying for a name so you can say “So-and-so produced my demo!” and sometimes you’re just getting ripped off by paying too much. A voiceover who does no research on the matter is far more to blame than a producer who over-charges.
We’re not exactly talking about predatory lending here…this is a much more straightforward situation. 😉
Re: copy for auditions that’s used in demos, I’ve never heard of anything current being used. And studios (that hosted the auditions) make no secret about the fact that they produce demos for voiceover clients, and yet, wow, their advertising clients keep returning!
Again, not sure of the reason for all of these questions in the first place. Seems an awful lot to me like a lot of stirring of a pot of something that everybody already thinks is pretty delicious.
Hi everyone,
Thank you for your comments.
Lou, these questions are relevant and although some of our readers may be satisfied or already educated about the goings on of the industry, this interview was a revelation for many and I felt the questions asked were of interest otherwise I wouldn’t have asked them.
Prior to this interview, I attended a class at a prestigious business school wherein the basics of copyright and other legal elements were covered. While listening, I quickly noted that these issues are scarcely addressed in our industry and would be interesting to explore.
After some thought, I crafted these questions and asked David Canton, who was one of the lecturers at the Ivey School of Business, to share some of his expertise with our audience at VOX Daily and answer some frequently asked legal questions that customers have asked us in the past.
I trust this interview has been of some value to those who found it worth their time. I am also grateful for the discussion and awareness generated by this interview.
Thank you all for your comments. If you haven’t commented yet (or have) and want to add more to this conversation, you are quite welcome to comment below 🙂
Best regards,
Stephanie
Stephanie,
That’s kind of my point: The reason you brought it all up was that you attended a class about it and thought about the fact that these issues aren’t addressed in this industry.
But “the industry” hasn’t had an issue with this, has it?
My question to you is: Are you solving a problem by asking these questions, or creating one? If the status quo isn’t bothering anybody, why create issues and, potentially, propose significant changes to the way things are done?
Lou
Hi Lou,
I think there is room for discussion in every aspect of our industry. This topic happened to be discussed through my initiation, true, but that doesn’t mean that only I was interested in discussing this subject and bringing it to the attention of other people within voice over.
The number of comments indicates that there is interest on both sides of this issue. Previous posts have addressed aspects of this issue and some of these topics have been discussed before.
Is the status quo acceptable or understood by everyone universally? Apparently not. Do I see this as creating an issue where there wasn’t one before? No, I can’t take credit for that, however, what I will take responsibility for is deciding to discuss this openly and respecting the various opinions of others.
Best wishes,
Stephanie
Unfortunately, fellow talents, this issue that Stephanie has raised is valid & extremely important. Up until a few months ago, I was blissfully ignorant of the fact that I’ve been violating copyright laws by using several Disney & other brand name snippets on my demos. (Clips that I had legally recorded for them!) When I discovered the truth of what David Canton has just told all of us, I went into complete denial and rationalizing-mode. (Picture me covering my ears humming “nah, nah, nah, nah…”)
Shortly thereafter, though, I remembered who is in charge of my career, and I needed to honor HIM with honesty. I decided to contact my brand recognition clients to get their permission for usage. Much to my pleasant surprise, it wasn’t difficult at all! (It even gave me the chance to re-connect with a few of those clients!)
I’m still waiting to get the final verdict from Disney’s Legal Dept., but I’ve been warned that the answer will probably be “NO.” They are VERY strict about copyright infringement. Oh well, I’ve come to realize that it’s not that big of a deal. God will bless me with whatever He chooses to bless me with……even WITHOUT all my Disney clips! :o)
One question I would like to hear answered by an IP attorney is: Can I use the piece that I did for Company X on my work reel? Can the producer/director give me permission to use it, or must that permission come from the copyright holder?
I used the commercials & narrations I voiced for the Fortune 500 companies as examples of my work for many years without asking anyone. …at least until I had a customer spit fire at me for using a piece that he paid to have developed and produced and voiced by me. He said flatly that he held the copyright and without his written permission, I was in violation of the copyright law – cease & desist immediately.
In the 80s, it was presumed that if the customer would give you a copy of the job that you could use it. The world is dramatically more litigious today so the presumption is now an assumption…and we all know about those who “ass-u-me.”
The really appalling thing that I hear about is people using production music without paying use fees in their demo reel. A demo reel is a commercial for you. Doing that is the same as a voice seeker using an audition in an actual end product without paying the voice for the work.
This is the best post from voices.com ever! I love hearing information from lawyers and this really helps me out as an actor! Now, Voices.com needs to create a button, so we can simply click ask permission to use audition or allow the person posting the audition add if that is okay. There is no way to contact an employer if you don’t get the job, so there is no way to ask if it is okay without voices implementing the above mentioned feature.
Hi Ryan,
Thank you for commenting and for sharing your appreciative thoughts! It was very nice of David Canton to allow for an interview to be held and shared via Voices.com as he’s one of the most knowledgeable people I know on this topic and area of law.
Thank you also for your suggestion that we add a button that would allow for talent to request permission to use auditions as spots on their demos. We do consider all suggestions sent to us, and while not all can be implemented, know that they are discussed and evaluated.
Best wishes,
Stephanie
I was wondering if all of this applies when it comes to character voices. I’m not talking about impersonating Mickey Mouse or anything but I’ve done a lot of my own character voices for auditions and they don’t reference any companies or brands in them. Can I use those in a character voice demo when I’d just be using snippets of lines from various games and animations?