DISCLAIMER: The information on this page should not be relied upon as "legal advise". This page is posted for entertainment purposes.
Recording prank calls: Is it legal to make prank calls? Legal to record? Then do I need permission to release a CD of these calls and or give to a radio station to air? I had to speak to 5 lawyers before I finally got the full picture and the right answers. You have to speak to someone who specializes in things like privacy law to learn about this stuff.
Is wiretapping legal or illegal in your state? Who cares! You need permission to "broadcast" the recording anyway.
"Wiretapping" is legal terminology for basically recording phone conversations without telling the other person on the phone ahead of time that you're recording the conversation. The preface of almost every phone book has a paragraph that talks about wiretapping laws for the particular state. Interestingly the laws for some states are so vague that there is no definitive answer. But don't be overly concerned about whether it's a one-party consent state (wiretapping legal) or a two-party consent state (wiretapping illegal). These laws actually only apply to whether or not it's legal to record calls for PERSONAL use -- but certainly not for "broadcasting" (on CD's, Internet MP3's, radio broadcast, sharing the recordings with friends, etc) the conversations to the world (which technically would be illegal in ALL states, and thus require victim's permission)! For "broadcasting" purposes, legally you need to get permission in all states ANYWAY!
This raises the question... Having recorded a call illegally, will I get into trouble when I approach call subjects to sign release forms? Will they try to sue me or call the cops? Simply for purposes of getting call subjects to sign release forms, the wiretapping issue is basically NEVER a problem. Out of hundreds of call subjects I approached (to sign permission forms) NOBODY ever asked me about what state I recorded in or questioned the legality of recording their voice. It appears as if Police don't even care about enforcing this law. I say this based on a couple of experiences! Wiretapping laws are perhaps REALLY only designed for police to nail serious criminals when there is nothing else to get them on, or when they are busy "throwing the book" at someone who is being charged for other stuff and the DA feels compelled to "do his job".
If you are planning to release calls on a CD you will need to get people's written permission ANYWAY, therefore there is no need to be overly concerned about state and Federal wiretapping laws. Interestingly Comedy Central rounded up all of their talent to record in Nevada and New York (one-party consent states) for the Crank Yankers show. But I think for the small time prank caller this is overkill. I say don't go way out of your way by traveling to other states to make so-called "LEGAL" calls in one-party consent states. Realistically I would personally feel free to record calls in ANY state.
As an interesting side note, I technically recorded many of my inbound calls LEGALLY from California (a TWO-PARTY consent state)! How? By notifying inbound customer service callers via an initial recorded greeting that said among other things "...this call may be monitored or recorded...." I was able to announce this without spoiling the prank call because businesses frequently record calls and announce it anyway. Of course as mentioned above, the issue of wiretapping has never become an issue anyway. Furthermore I have recently been told by an entertainment attorney that once a release form is obtained it doesn't matter if you recorded the call from a 1-party consent state (illegally).
If you really have to know, New York has the most relaxed wiretapping laws in the US. Others include Virginia, North Carolina, Arizona, Alaska, Nevada, Alabama, and some others that I can't remember. The show Crank Yankers was overshadowed by lawyers, and in fact they made their calls to these "safer" states.
INVASION OF PRIVACY: Using someone's "likeness" for broadcast (on a CD, radio, Internet) requires their permission in ALL states including the "1-Party" consent states
While it may be totally legal to record calls without permission in 1-party consent states for PERSONAL USE, if you are releasing a CD for the world to hear then you are essentially "broadcasting" someone's "likeness" for more than 1 person to hear, and that requires their permission. "Likeness" basically has to do with one's expressions of thought and possibly (if a court were to interpret it as such) the unique way that someone's voice sounds.
It is strange but true that state law doesn't even have to include mention about using one's "voice" for you to be in danger of being sued for basically using their voice! For example the state of New York (which has the most relaxed laws in the US) does not specifically say that it's illegal to record someone's "voice" without their permission, BUT strangely there is NO mention of "likeness" in their written law. This opens up a whole new can of worms for lawyers, and is a legal pitfall for prank callers in New York who think they can get away with "broadcasting" calls without permission. This means that you can be sued for INVASION OF PRIVACY when you "broadcast" a call on CD, even though you recorded within New York (a one-party consent state)!. The rest of the 49 states only get tougher. An invasion of privacy suit over unauthorized use of likeness (on a hot selling CD release) could potentially be for a LOT of money. Therefore you need to get people to sign release forms if you have big plans for a CD release.
COPYRIGHTS: A prank call is a "joint work" that also requires you to get written transfer of the other 1/2 of the ownership
If you are releasing calls on a CD then (in addition to invasion of privacy concerns) we have copyright concerns that need to be addressed as well. In a prank call conversation the words that come out of the call victim's mouth were not written by you. Technically THEY (the people being pranked) are the writers behind the words that they say. So let's say that you released a CD full of calls with NO permission from call subjects. A plaintiff can also come after because the conversation is a "joint work". I am unsure if they could sue you for copyright infringement and/or just for royalties owed. Copyright infringement is brutal: $750 per offense, meaning $750 per CD sold. Royalties would only be based on CD's sold. Until you begin to sell a lot of CD units there won't actually be a significant amount of copyright infringement money for them to sue you for. The royalty rate is about 7.75 cents per CD, times the list price, divided by the number of tracks on the CD, divided by the number of contributors to the call (usually you and them 50/50). So for example if you had 14 prank calls on a CD that sold 10,000 copies at $16.99, then someone would be suing you for (in addition to a monetary claim for invasion of privacy) a total of $941.00 for illegal use of the creative work. Again I am unsure if they could sue for lost royalties or copyright infringement. US copyright law dictates that copyrights must be transferred in writing. Verbal promises don't cut it. The release form you have them sign should address copyrights.
How big are your plans?
If you are only manufacturing 1,000 CD's to sell on the Internet and you have NO money to sue for then I probably wouldn't worry too much about law suits. If you have bigger plans and expectations of airplay then you may want to consider approaching call subjects to sign release forms. Even if you don't expect to sell many CD's in the city where the call subject lives, consider that they may have friends and relatives in other cities where you may get airplay, etc. Word gets around, especially with YouTube and internet.
Overall the worst that might likely happen is that the call subject may contact you and tell you to stop, or they may have their lawyer send you a cease and desist letter, or they may send a letter demanding money. Lawsuit? Doubtful. Keep in mind that filing a lawsuit is VERY expensive!!! My guess is that someone won't sue you until you've sold a hundred thousand or more CD's and / or you have money to sue for. They will need some motivation to pay a lawyer that whopping $2,500 retainer. And unless there's lots of money to sue for it just isn't worth it.
If you don't have a bank account then you don't even have to bother fighting a law suit. Just let 'em win by default. In case you didn't know, in America 79 percent of all plaintiff's who win money judgments never collect. And it costs plaintiffs like $400 each time they do a national search for bank accounts.
Don't get arrested!
Probably the biggest worry for prank callers is not lawsuits from individuals but getting in trouble with the cops. There are many gray areas of law that are not definitive.
One thing for sure is that you should never threaten or harass call subjects! Being that I have some pretty angry calls on my CD's I might sound like a hypocrite, however if you listen carefully to my calls I never REALLY threaten people. Instead of saying "I'm gonna come over there and kick your ass" I'll say "I'm gonna dig through your trash" or "I'm gonna pee in your gas tank". Or I'll say (as a character in a WHEELCHAIR) that "I'll slap a banana peel in your ugly face." How can someone really be threatened by a stuttering retard in a wheelchair??? If they GENUINELY sound like they are threatened or say "I'm gonna call the cops if you call one more time" then lay off. Sometimes people will say on the phone "stop calling here" but in an almost playful, not serious way. You have to use your own realistic judgment and decide if they are REALLY becoming threatened. Calling multiple times starts to become a bad thing because all those calls would be documented by the phone company and may in and of itself be construed as harassment. If sued then obviously the prosecution would be allowed access to your phone records as evidence.
Other areas that are TOTALLY off limits in prank calling include bomb threats, pranking the fire department, pranking 911, pranking government officials, anthrax scares, asking about bringing grenades as carry-on luggage to the airport, etc. Yet there are some really dumb kids and even grown adults who still make these types of calls. If you avoid these types of obviously illegal calls I think that the Police won't want to be bothered with pursuing prosecuting you because there is so much of a gray area between distinguishing illegal phone harassment from innocent phone gags. Cops have much more serious stuff to deal with. But it is still up to you to have good judgment as far as not crossing the line.
Also "obscene" calls are illegal in most states. Be careful who you prank. Religious bible thumpers might get upset and call the cops if you pull a risqué prank on them.
Remember that lawyers always feel obligated to tell you that everything under the sun is illegal. If you were to listen to everything lawyers tell you then you would conclude that NO prank call can be made ever! Yet a practical joke or phone gag is just that ...a joke. I say not a crime.
UPDATE: I know of someone who got arrested for pranking an inbound telemarketer call! HE basically suggested to the telemarketer that he just accidentally drowned his grandpa. The cops charged him with "disorderly conduct". He wound up having to pay a $250.00 fine. Later a lawyer told him that he could have gotten him clean off the hook had he remained silent after they arrested him. Nevertheless this just goes to show you that the cops are in the driver's seat. They can slap a fine on you, or jail you as they please.
I once made a prank call (out of state) to a funeral home. I was asking about buying a coffin and embalming fluid. Of course the caretaker asked what in the world I needed these supplies for. I explained that a guy overdosed in my apartment and died, and I wanted to bury the guy myself. The caretaker insisted that calling the police was the only way to do it. I said that I didn't want to go back to prison. About a week later I got a call from a Police detective. I told him it was a prank for a radio station. The detective didn't bother filing any kind of charges but said to stop calling his state. The detective told me that he thought it sounded like a prank call, but he would follow up on the funeral home guy's tip anyway. The detective said that he had to go to court to get a judge's permission to access phone records to reverse trace the call. Wow!
On another occasion I did a prank call on someone who happened to work for the state of California. A detective later followed up because the call subject was "upset". When the detective realized that it was all just a prank he finished filling out the report and that was the end of the phone conversation. But a few hours later this detective actually called me back to see if I would prank a Police officer buddy of his!!! I think he was serious but I was worried in the back of my mind that he might be trying to somehow frame me so I had to pass. But what surprise that was!!!
Inbound Calls = Less Risk
In California it's against the law to make obscene or threatening calls. (California Penal Code section 653m). That's MAKE calls! Therefore answering inbound calls puts you at increasingly LESS criminal risk (if any at all). How can someone be harassed or threatened when they initiated things by calling you in the privacy of your home? What if you're a bit drunk and don't remember what you said to someone who called you in the privacy of your home? What if you answered the phone and talked to someone in your sleep? What if you THOUGHT that a friend had tried to pull your leg and so you just played along for fun? These are all believable, reasonable, and legal excuses for taking a caller on a wild goose chase of a prank call. The bottom line is that they called YOU in error and they have the power to hang up the phone. I heard that in Florida it has already been upheld in court that a caller CANNOT be harassed when they initiated the call and couldn't figure out that all they had to do was hang up the phone. Nevertheless when taking inbound calls I still don't harass or threaten anyone. A different charge could be used against you such as "disorderly conduct".
In the past a shipping company was accusing me of "intercepting" their calls. Yet if I'm merely answering my OWN phone then how on earth can I be allegedly intercepting calls? Their pushy lawyer's biased contention was that if I were to have been assisted by a secondary individual (at their work place) to divert calls to me, then that would be illegal. But I am unsure of this. Lawyers will say anything to get you to bend to their demands. One thing for certain is that the way the law is written is that it is illegal to "intercept" calls. But what the hell is the definition of "intercepting" calls? The word "Intercepting" sounds more like secretly climbing up the telephone pole and splicing phone connections, answering someone else's phone, or other clandestine activity. There is no court precedent (according to my lawyer) regarding this type of situation. Nevertheless one may want to avoid generating wrong number calls whereby you would have a friend at his or her work place send customers on a wild goose chase by telling them to call YOU.
Re-broadcasting Pranks to Radio and TV Shows
You don't need permission to record radio and TV talk show hosts that you prank. Why? There is NO expectation of privacy. They're already on the air and they know it! And therefore they can never sue you for invasion of privacy. That's how Captain Janks gets his stuff re-aired on the Howard Stern radio show obviously without getting permission from people like Phil Donahue, Dan Rather and Rosie O'Donnel (who would otherwise NEVER give permission). However if you release a CD the royalty thing would apply. If you sold enough CD's then they might sue you... or more than likely they wouldn't want to be bothered and / or would have their lawyer send you threatening cease and desist letters (which you would of course IGNORE!). Captain Janks in fact has sold CD's with his calls. I am unsure if he is at risk of being sued for copyright infringement OR for lost royalties. Either way I don't think these news anchors or TV networks think it's worth their time.
As a footnote story radio personality Phil Hendrie sells comedy CD's that include the voices of callers to his show. In this example there is of course no expectation of privacy AND because the proceeds of the sales of his CD's go to charity, there are no royalties to sue for.
Posting Calls on the Internet
When you post prank calls on the Internet you are essentially "broadcasting" them for the world to hear. Doing so without the call subject's permission could leave you vulnerable to "invasion of privacy" law suits (just as you expose yourself when you "broadcast" a call on a release a CD). It makes no difference whether you are selling the call(s) or not. If you are selling the calls then they would additionally tack on a copyright infringement claim.
Mention of Real Product Names in Your Calls
Most lawyers are "programmed" to tell you that you are supposed to bleep everything out. There are very few lawyers who are proponents of freedom of speech out there. Accordingly I wouldn't even BOTHER hiring a lawyer to review your calls. They just don't know the complexities of this area of the law. One time I paid for an hour consultation with a Los Angeles "entertainment attorney" who's office was way up high in a building. I asked him about specific mention of products in my phone calls. He basically told me to bleep everything out. Then I asked him how on shows like Saturday Night Live they are able to make fun of real companies. Then he stopped, thought to himself, and basically said that maybe you CAN mention certain things in certain situations! So this so called "entertainment lawyer" didn't even know what the hell he was talking about. And I'm thinking, "why on earth did I waste $350 for a consultation?"
Basically you shouldn't mention any trademarked product in a disparaging way. But you have every right to "dress your set" with real products if used in a harmless way (or in parody). So as an example: "I ate a Kit Kat bar and got sick as a dog" makes a bad statement. However "Do you carry Kit Kat? What about M & M's?" is harmless. Sometimes it's hard to determine if harm is done. On one of my calls I say "Have you heard of Hooked on Phonics?.... Yeah. Well I'm hooked on DRUGS." On the surface this might seem like I've put the trademarked name in a bad light. But in fact this is merely a play on words. It's just a juvenile joke that really makes no statement about the product whatsoever. It really just pokes fun at that catch phrase they used to sell the learning product.
Comedy Central really stretched their fair use rights on Crank Yankers. On one call to a 7-Eleven the caller asks the clerk to pee in the slurpie machine. "7-Eleven" and "Slurpie" were left unedited.
Furthermore the Fairness Doctrine allows for using copyrighted stuff; especially in literary, theatrical or musical work (as opposed to using product mentioning as part of a commercial advertisement or marketing gimmick). So mention of a real product in a prank call isn't the same as having the name of the product on the front cover of the CD or if you mentioned a product in an advertisement for a CD.
While prank calls have never been tested in court, it could be that a prank call is parody to begin with. How believable is the call or statement that is made about a product? One thing I believe that you should NEVER EVER contact a company to get their permission to mention their product on your CD. Their lawyers are ALL "pre-programmed" to tell you "NO" even though you may have every right to your use. Contacting them will also bring their attention to your CD.
Another thing to consider relates to a legal term called "likelihood of confusion". Let's say that in your prank call you pretend to be an employee of K-Mart and you call someone up and say a bunch of offensive stuff. It's a prank calls, but is there any likelihood that someone might listen to your CD and think that it was a real K-Mart employee misrepresenting the company? This can be a real gray area of law. This is why it's best to bleep out the names of real companies when in doubt.
Furthermore if you release a CD and a company winds up sending you a cease and desist letter don't sweat it. Companies routinely send out demanding letters because they have no sense of humor and think that they are immune from jokes and satire. I have a friend who sells herbal products who has received 3 cease and desist letters in 2 years time. In each of these letters the companies severely pushed the envelope while having little or no legal grounds to complain. Don't be intimidated by these letters, which are just that... letters. You have no obligation to even respond to them. If you DO decide to respond then ASSUME that they are going to sue you (which they won't) and DON'T volunteer any relevant information. Often they will hurl allegations at you in order to get you to volunteer information and comply with their demands. Usually they will say something to the effect of... "You have violated such and such law(s)" and "We require...." and "We demand that you....", etc. Finally they try to scare you into thinking that they are on the verge of suing you by saying something to the effect of "Our client reserves all rights and remedies including without limitation taking legal action against you and filing a criminal complaint with the federal authorities". They try to use FEAR to get you to comply. In California this in and of itself is illegal. Do NOT be intimidated! You have no legal obligation to respond to a lawyer's demand letters, which are merely arguments, and often they are ridiculous arguments. You can even call them up and tell their lawyer to "Fuck off", stop threatening you and then hang up on him. Keep in mind that usually these companies have NO legal basis to their claims (or they have severely twisted their interpretation of the law) and they have no intention of really bothering suing you. Also when a company sends you a letter then that piece of paper becomes YOUR property. Share it with the world if you wish.
If you DO have money to sue for then you might consider forming a LLC so that it will prevent (or at least make it more difficult for) someone to go after your personal assets. Lawyers won't sue you if you only have a measly $5,000 in your LLC bank account. Lawyers don't work for free. Also keep in mind that it can cost a company upwards of $10,000 or more just to get the ball rolling by filing a lawsuit. Why on earth would a company be bothered with suing a lowly little prank caller? It just doesn't happen. The enormous cost weeds out the people who are full of shit with their groundless and/or tiny claims.
DISCLAIMER: I do not guarantee that any drop of anything on this page is correct or that you won't get sued or arrested by relying on information on this page. Take it for what it's worth. I warned you so don't sue ME if I'm wrong! This page is posted only for entertainment purposes. The information posted on this page should NOT be relied upon as LEGAL ADVISE. : )
Sincerely,
the Touch-Tone Terrorist
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