PRANK CALLS and the LAW
WIRETAPPING | INVASION OF PRIVACY | COPYRIGHTS | OBSCENE, HARASSING or THREATENING CALLS | CIVIL LAWSUITS / CRIMINAL OFFENSES
Recording prank calls: Is it legal to make prank calls? Is it legal to record them? Do I need permission to release an album of calls, or 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, harassing or threatening calls, and trademark infringement.
DISCLAIMER: I am not a lawyer. The information on this page should not be relied upon as any kind of "legal advice" nor should it be construed as encouragement to make prank calls or break the law. Do not make prank calls! If you are planning to make any prank call then always consult with a lawyer first. This page is posted for entertainment purposes only.
Is wiretapping legal or illegal in your state? It's a moot discussion if you are releasing a prank call album: 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 states that require consent, and vice versa. The stricter state has legal jurisdiction in this situation. For example if you live in a "no-permission required" state like New York, under most circumstances you would be breaking the law if you recorded calls to California without consent. Generally California residents cannot legally call New York and record calls without permission. There are a few exceptions.
Interstate or international wireline conversations may not be recorded unless the use of the recording device is:
preceded by verbal or written consent of all parties to the telephone conversation; OR
preceded by verbal notification that is recorded at the beginning, and as part of the call, by the recording party; OR
accompanied by an automatic tone warning device, sometimes called a “beep tone,” that automatically produces a distinct signal that is repeated at regular intervals during the course of the telephone conversation when the recording device is in use.
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 now release the call. These state wiretapping laws actually only apply to whether or not it's legal to secretly 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, on YouTube, radio broadcast, sharing the recordings with friends, etc.) People have a certain "expectation of privacy" even in loosely regulated states like New York. Nobody in any state is expecting a private conversation to appear on YouTube or the next prank call album release!
So if your goal is to broadcast a prank call on YouTube, on an album, on radio or anywhere else, legally you need to get permission from the call subject 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
So 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 an album 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. In the eyes of the law "broadcasting" means playing the call for anyone besides yourself. "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 may 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 copies of prank calls (on CD, for digital download, etc) 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 because later everyone lies in court. Also some distributors of media content may require that you produce releases. The talent release form you have them sign should address transfer of copyrights.
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How big are your plans?
The bigger the buzz the greater the likelihood a getting sued if you didn't do everything the legal way. If you release a call that only a few die hard fans of prank calls hear then what is the likelihood of the call "victim" finding out about the calls, much less taking legal action if they were to find out. But consider that things like YouTube videos can go viral. Even if you pull a video down then someone else might repost it. Eventually the "victim" might find out, if nothing else through friends or relatives. If you've been selling a lot of albums then that tends to become more of a magnet for lawsuits.
Do you have money to sue for? If so then I would really think twice before releasing something on the Internet. If not then your poverty will hopefully discourage any lawsuit. It costs about $10,000 just to file a lawsuit. Even if they won, in America 79 percent of all plaintiff's who win monetary judgments in court never collect. And it costs plaintiffs about $400 each time they do a nation wide search for bank accounts to collect from.
Bleep out identifiers!
Be sure to edit out names of people, names of companies and possibly other identifiers like phone numbers, street names, and city names that might tip off precisely who or what company is being pranked. Don't give it away. For example don't leave "The pizza parlor on Sunset and Wilcox" unedited. You don't want to invite a lawsuit!
Don't get arrested!
Probably the biggest worry for prank callers is not lawsuits from individuals but rather getting in trouble with the cops. There are many gray areas of law that are not definitive, but some areas of law are obvious.
Threatening calls VS just arguing with someone: One thing for sure is that you should never threaten or harass call subjects! Being that I had 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 threatened people. I used just argue with people. Instead of saying "I'm gonna come over there and kick your ass" I'd call someone names or say ridiculous stuff like "I'm gonna pee in your gas tank" or I'll demand that someone drop and give me 50 pushups while on the phone. 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 pathetic stuttering retard in a wheelchair??? None of the call subjects took my light hearted "threats" seriously. 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 or let them know that you're not serious. You have to use your own good judgment in making calls that do not rise to level of being threatening.
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 100% TOTALLY off limits include bomb threats, pranking the fire department, pranking 911, pranking government officials, anthrax scares, jokingly asking about bringing grenades as carry-on luggage to the airport, convincing a fast food employee to strip search someone, etc. Yet there are some really dumb kids and even grown adults who still make these types of shocking calls -- and then we hear in the news about them getting arrested!
ARTICLE - Mar 11, 2013 - A 12-year old boy was arrested for making false 911 calls and bomb threats.
The latest "trend" in prank calling involves calling 911 to report false "incidents" in order to trigger police swat teams to show up at celebrity homes with their guns drawn. The list of victims to have reportedly been swatted include Sean 'Diddy' Combs, Rihanna, Simon Cowell, Selena Gomez, Ashton Kutcher, Kim Kardashian, Tom Cruise, Charlie Sheen, Russell Brand, Ryan Seacrest, Justin Timberlake, Justin Bieber, and Miley Cyrus. Needless to say swatting is way beyond prank calling. It's a serious criminal act that could potentially result in someone getting killed. On June 26, 2009 Matthew Weigman was sentenced to 11 years in prison for swatting.
"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.
Check state laws. The state of Wisconsin legislature was recently pushing to simply make it illegal to make prank calls (March 2012). If passed the law will prohibit callers from doing something as simple as purposely giving a false phone number and lying about his or her identity. Even without such laws, police can interpret laws any way they choose, whether on solid legal grounds or not. It can be subjective. In the end if you get arrested you will have to fight it and that will be expensive.
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 fought the case 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 and misinterpreted the law.
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 a surprise that whole experience 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 may only reward victorious plaintiffs with "nominal damages" (one dollar).
In late 2012 two DJ's from a radio station in Australia made a seemingly harmless prank call to a nurse working at a hospital where Prince William's wife Catharine had checked in. The two DJ's pretended to be Queen Elizabeth II and Prince Charles and managed to get the nurse to give out sensitive private information about Catharine, all against hospital rules. The call was later broadcast and got world wide attention. The unstable nurse later committed suicide presumably because of the prank call and the fact that she broke the hospital rules. The DJ's have "lawyered up" in anticipation of a possible civil lawsuit. I think it's obvious that the nurse had emotional issues far beyond being upset over a prank call. Also as insensitive as it sounds, the nurse did not follow the rules. That was her fault. But even if you successfully defend such a lawsuit it will undoubtedly be very costly. And what are the odds that a jury might find them at least partially responsible?
This whole case illustrates that remote risk of a seemingly harmless call going terribly wrong! If you insist on making prank calls then be very selective about who you prank and under what circumstances. You might want to just completely avoid people who sound very sensitive. I always used to like the people who scream, yell, swear and wear their heart on their sleeve. I learned from experience that these really angry and outspoken call subjects are actually most likely to sign your release form! It's those quiet people who have no sense of humor. The woman who was pranked by the Australian DJ's sounded meek and boring. It's not even funny when these people are pranked. I would have ditched the call and hung up.
Inbound calls = A possible legal loophole with regard to obscenity
and certain other laws in some states?
Laws vary from state to state and are constantly changing. For example in some states it's apparently only against the law to make obscene or threatening calls. That's MAKE such calls. Therefore it would appear as though taking incoming calls might possibly put you out of legal harm's way if for example you were to say something obscene or threatening to the caller. Take Nevada as an example, which consistently only speaks of it being "against the law to willfully make a telephone call and [address obscene language, threaten, call with the intent to annoy]". So in a state like Nevada how can someone be victimized if they initiated things by calling you? The bottom line is that they called you and they have the power to hang up the phone. Nevertheless when I took inbound calls I still didn't harass, threaten or use obscene language.
Another element is intent to cause harm. What if in the privacy of your own home you thought that a friend had tried to pull your leg and so you just played along for fun? This is might be a believable and reasonable defense that could conceivably be used as an argument that you had no intent to harm the caller.
I had a field day receiving calls and then turning those inbound calls into comedic pranks. So in the eyes of the law at that time I believe that I was not actually "making" prank calls. People were calling me! Yet at one point a shipping company was sending me letters, accusing me of "intercepting" their calls. Yet if I'm merely answering my OWN phone then how on earth can I be 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.
Remember that there's more than just state penal codes to worry about. Just because you are taking inbound calls doesn't get you off the hook for everything under the sun. You still can't threaten someone or say something that might cause them to lose money, break the law, commit suicide, or who knows what else. And to reiterate there is no state in which you can record and release calls without permission from the call subject, whether it originated as an inbound or outbound call.
Some states have closed the "make" prank calls loophole. Their language usually reads "makes, creates or solicits" or "making or permitting a telephone call" or "makes or utilizes a telecommunication device". I sometimes wonder if it was my calls that inspired lawmakers to change the laws! The bottom line is that you should research the law in your state and probably use good judgment no matter what.
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 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 royalty 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. Because the proceeds of the sales of his CD's go to charity, my understanding is that either there are no royalties to sue for or half of sales profits would be owed to the call subjects
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
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 dry, rudimentary, 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: This page is posted only for entertainment purposes only. I do not guarantee that any drop of anything on this page is correct or that you won't get sued or get arrested by relying on information on this page. Information on this page should not be relied upon as any kind of "legal advice" so don't sue ME if something on this page wrong and you foolishly relied upon it! : )
NEWS STORY: Activist pays out $100,000 settlement for surreptitiously recording video footage in California.
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I am not a lawyer. The information on this page should not be relied upon as "legal advice" nor be construed as 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.