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Old February 20th, 2004, 01:14 PM   #1
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Legality of using message left on answering machine

Hey guys--In the documentary I am producing I would like to use some messages that were left on the answering machine of one of the documentary subjects. These were messages left by random people who supported him in an issue in which he was involved. (You can check out the doc at www.bicoastalfilms.com. You can see the trailer for the film in the "Investors" section. Password: bicoastal). He has provided me with the tape of answering machine messages. So the question is: Can I use these messages without getting the permission of the person who left the message? What about if I left out the person's name (most of them identify themselves) so they weren't identifiable? This man obviously has no disclaimer on his machine that says these may be used for a film or reproduced etc. Anyway, curious to hear what I need to do. Thanks!

Peter
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Old February 20th, 2004, 01:36 PM   #2
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First, you're not my client, so I can't give you legal advice. What follows is for general discussion, only.

Without researching this, my guess is that message content on answering machines is protected by copyright, which resides in the caller, i.e. there is original expression and it is fixed in a tangible medium. I might be wrong, though. That's concern number 1.

Next, many jurisdictions have laws which preclude commercial appropriation of _voice_, as well as name (In a famous case, Tom Waites sued FritoLay over a Doritos commercial that used an impersonator).

Finally, remember that many people who sue lose, meaning that their case didn't have merit. Just because you might have the legal right to do something doesn't mean you won't be sued for exercising that right (and I am _not_ saying that you have the legal right to use the recordings).

Good luck!
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Old February 20th, 2004, 02:03 PM   #3
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Thanks Paul! If I were to obtain a standard release from the caller do you think I would be on better legal ground?

Peter
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Old February 20th, 2004, 02:58 PM   #4
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Some states have very specific laws about the recording of phone conversations. I'm not sure how, or even if, that applies to recorded messages. However, you might want to contact a local attorney familiar with your state laws.
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Old February 20th, 2004, 03:12 PM   #5
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THanks Jeff. I will be sure to post back here once we decide what we're going to do. Another thought: Some of the audio fidelity, as you may imagine, is quite poor. In other words, a person's voice is not recognizable. Were we to not include their name, could we still use the message? Thanks!

Peter
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Old February 20th, 2004, 04:02 PM   #6
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Quote:
If I were to obtain a standard release from the caller do you think I would be on better legal ground?
I'm not sure what you mean by a standard release but, yes, if the caller gives you permission, and their consent is informed, i.e. they know what you're going to do, and how you're going to use it, you'd be okay (though be careful of false-light defamation, e.g. making the caller look foolish out of context, etc.).

Quote:
Some states have very specific laws about the recording of phone conversations. I'm not sure how, or even if, that applies to recorded messages.
Generally, these laws go to non-consensual recording. If you leave a message on an answering machine and you know it's an answering machine, you've agreed to the recording.

Quote:
In other words, a person's voice is not recognizable. Were we to not include their name, could we still use the message?
Well, that wouldn't get you around the copyright issue, nor would it necessarily preclude commercial appropiation liability. And, as I _do_ tell my own clients, if you decide to skate on thin ice, don't blame me if the ice cracks.
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Old February 20th, 2004, 04:28 PM   #7
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Thanks Paul. So it sounds like obtaining some sort of release would be the best bet. Would a modified version of the release I posted earlier today be adequate? Thanks!

peter
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Old February 20th, 2004, 07:08 PM   #8
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What ever release you use needs to be specific to the recording. I really can't give you an opinion about the adequacy of the release, partly because I would need to research it, and partly because the licenses that I draft for my clients tend to run to 15 or 20 pages. I can't say how much of what I include is strictly necessary, other than my clients pay me to dress them in belts and suspenders, with a heavy application of super glue and rivets. So far my license agreements have held up, and have covered a number of originally unforseen situations. Again, my recommendation would be to go to a law library, find a good entertainment law form book, and pick something that makes sense and has been tested in court.
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