PRANK CALLS and the LAW

Recording prank calls: Is it legal to make prank calls? Is it legal to record them? Do I need permission to release a CD of recorded calls, to post calls on the Internet, or to give calls to a radio station to air, or to just give to friends? Over the years I have consulted with 6 attorneys to get the full picture and the right answers about the laws. You have to speak to lawyers who specialize in things like privacy law and entertainment law to learn about this stuff. The things you need to worry most about are wiretapping laws, invasion of privacy, copyrights, obscene or threatening calls, and trademark infringement.

DISCLAIMER: I am not a lawyer. The information on this page should not be relied upon or taken as "legal advice" or any other type of "advice" or "encouragement" to make prank calls or break the law. This page is posted for entertainment purposes only. If you need legal advice then find a lawyer.

Is wiretapping legal or illegal in your state? It's a moot point if you are releasing a prank call CD: You will need permission anyway!

In some states it is against the law for you to record phone calls without the consent of the person on the other end of the line. Even if you live in a state that does not require consent to record calls, you may not record calls to or from from states that require consent. The stricter state has legal jurisdiction in this situation. For example if you live in a "no-permission required" state like New York, you would be breaking the law if you recorded calls to or from California without consent.

Interstate or international wireline conversations may not be recorded unless the use of the recording device is:

So when it comes to recording inbound calls, even if you live in a strict state like California, a simple announcement (example: "...this call may be monitored or recorded....") at the start of the call constitutes "consent". This worked well for me as I was able to legally record customer service calls for my CD's. Some businesses routinely announce that they record their calls, so nobody was "tipped off" that a prank was about to occur. Later I would approach them to sign talent releases to appear on my CD's, without any worry about having broken any wiretapping laws.

In all of my years of recording and releasing prank call CD's I never once encountered anyone who ever questioned what state I recorded my calls in. This is not to say that there could not be that one-in-a-thousand nutcase person who will go after you tooth and nail if you violate wiretapping law. While getting convicted of breaking wiretapping laws might be as rare as getting popped for J-walking, if you somehow manage to get caught and convicted, the penalty could potentially be stiff. The only way to be 100% safe is to record your calls legally, to and from 1-party consent states, or with verbal notification (described above). Click here to learn more about whether your state is a 1-party or 2-party consent state. The preface of phone books also usually has a paragraph that talks about wiretapping laws for that particular state.

Now just because you recorded a call legally doesn't mean that you can release the call. These state wiretapping laws actually only apply to whether or not it's legal to record calls for PERSONAL use -- but certainly NOT for "broadcasting" the conversations to another person or to the world, which technically would be illegal in ALL states, and thus require the call subject's permission. ("Broadcasting" means putting the conversation on CD's, Internet MP3's, radio broadcast, sharing the recordings with friends, etc.) So if your goal is to release a CD of prank phone calls, then legally you need to get permission from people living in all states anyway.

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 (like New York) 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. Although verbal permissions can hold up in some unique situations, don't rely on a verbal permissions. Always get it in writing.

COPYRIGHTS: A prank call is a "joint work" that requires you to get written transfer of the other 1/2 of the ownership

If you are releasing prank calls on a CD then (in addition to invasion of privacy concerns) we have copyright concerns that need to be addressed as well. The words that come out of the call victim's mouth were not written by you. Technically they are the writers behind the words that they say. The conversation is a "joint work". US copyright law dictates that copyrights must be transferred in writing, otherwise you are subject to provide an accounting and pro rata share payments to the call subject. Verbal promises are not good enough. The talent release form you have them sign should address transfer of copyrights.

If you are only manufacturing a few 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 $10,000 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 about $400 each time they do a nation wide search for bank accounts to collect from.

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.

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. The courts make the laws, and the police are left to enforce the laws, but sometimes the police misinterpret the laws. Don't assume that if you are contacted by the police or arrested that they haven't overstepped their authority.

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 followed 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!

Once I made a prank call on someone who happened to work for the state of California. A detective later followed up because he said 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!!!

In conclusion I suggest calling the person back to tell them it was just a joke if you think they may have been "traumatized" in any way. Otherwise in theory they might turn around and sue you for "damages" but I'm told by an attorney that judges don't take these cases seriously and often only reward victorious plaintiffs with "nominal damages" (one dollar).

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 and reasonable 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.

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 the BIG lawsuit of "invasion of privacy". That's how Captain Janks gets his stuff re-aired on the Howard Stern radio show without getting permission from people like Phil Donahue, Dan Rather and Rosie O'Donnel (who would otherwise NEVER give permission). Captain Janks has also sold CD's with his calls. It is my understanding that because Janks was a party to the conversation, he is a joint copyright holder to the conversation. The way US copyright law works is that a joint copyright holder has a right to commercially exploit the conversation, subject to payment and accounting for the TV station or news anchor's pro rata share, which is nothing major. Either way I don't think these news anchors or TV networks think it's worth their time to demand their little bit of payment.

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.

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.

On the one hand we have companies that bully people with law suits in the name of "trademark infringement". On the other hand we have the 1st Amendment (freedom of speech) which in theory allows for mention of real products for artistic impression. The wild card is that even if you're legally justified in mentioning a real trademark in your calls, the owner could sue you. Hopefully the case would get thrown out, but in a worst case scenario you might have to spend $100,000 fighting off the lawsuit and winning your case, but in the end you still had to spend $100,000 in legal expenses - that you are not allowed to recoup. For this reason many lawyers will tell you just to bleep everything out.

But assuming you either have no money to sue for or you have a corporation to shield yourself from a trademark infringement lawsuit, and you want to exercise your 1st amendment rights to the fullest, what can you get away with?

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. I could say "Have you heard of Hooked on Phonics?.... Yeah. Well I'm hooked on DRUGS." On the surface this might seem like the trademarked name has been used in a bad light. But in fact this is merely poking fun at the phrase "Hooked on Phonics". It's just a juvenile joke that really makes no statement about the product itself.

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. I think the fact that the show featured puppets ( not real people) in and of itself makes a strong argument that the bit is a parody. What could 7-Eleven claim? That the bit encourages people to go out and pee in slurpie machines? Clearly the show is a joke.

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.

There was a landmark case involving WHAM-O suing Paramount Pictures over the use of a Slip 'n Slide in a movie. The case was dismissed. This was a victory for freedom of speech and use of real products for artistic impression.

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 "wake them up" and bring their attention to your CD. If they say "no" and you choose to mention their product anyway, just the fact that you put them on notice by asking for permission may invite a lawsuit.

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 "F*** 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.

Recently momentum has shifted more in favor of freedom of speech. WHAM-O, Inc sued Paramount Pictures in an attempt to cash in on Paramount's use of Slip 'N Slide in "Dickie Roberts: Former Child Star". They tried to claim among other things that use of their Slip 'N Slide toy in the movie might suggest to viewers that WHAM-O sponsored or endorsed the movie. In 2003 the court basically shut the door on all of WHAM-O's bogus claims, in a victory for free speech. The bottom line is that it's impossible to shoot a movie without having trademarked products (such as cars, etc) appear in your movie. By the same token it's to be expected that in phone conversations people may talk about real trademarked products. The bottom line is 1) don't disparage their product, and 2) don't suggest or make it appear as though you might endorse their product.

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 that information on this page should not be relied upon as "legal advice" so don't sue ME if something on this page wrong! This page is posted only for entertainment purposes. : )