Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
The CAP Code states that marketers should not unfairly portray or refer to people in an adverse or offensive way. They are urged to obtain written permission before referring to people with a public profile. Marketers should be careful to ensure that featuring people with a public profile alongside their product does not imply an endorsement if none exists (Rule 6.1).
The CAP Code does not explicitly comment on the use of lookalikes and impersonators and many marketers have tried to circumvent statutory and non-statutory rules by using them. The question is, then, can marketers use impersonators to get round the CAP Code? Marketers should avoid implying an endorsement if it does not exist and, if the impersonator is so convincing that readers are likely to believe the ‘celebrity’ does endorse the product, the ASA is likely to uphold complaints. Marketers should ensure that they do not use look-a-likes in a way that is insulting or offensive to the person with a public profile. Back in 1996, the ASA upheld a complaint after a marketer used an actor dressed like Eric Cantona to convey a notorious incident when Cantona karate kicked a fan. The ASA considered that, whether or not the photo was of Cantona was immaterial; the image was clearly intended to represent him.
Cheeky or obviously humorous uses of lookalikes that are unlikely to confuse readers about endorsement and are not derogatory to the original ‘celebrity’ are likely to acceptable. In 2002, Cadbury Schweppes ran a campaign featuring look-a-likes and topical media items. One ad, which followed rumours of an affair between the English football team coach and a TV presenter, featured three people who looked like Ulrika Johnsson in a state of undress, Nancy Del Olio and Sven Goran Ericksson along with the endline “Sch…You know who?” The complainant objected that the ad was offensive because it infringed Sven Goran Eriksson’s privacy and was misleading because it looked like a real photograph. Because the ad was humorous and tongue-in-cheek and also featured vertical print that stated “Sch… you know it’s not really them”, the ASA considered the ad was unlikely to cause serious or widespread offence or constitute an unfair reference to those referred to or an invasion of their privacy.
In an ad for high performance boilers, Valliant Ltd featured a look-a-like of the Queen hanging washing on a radiator; a Corgi dog was next to her with a sock, embroidered with the initials “E.R.” in its mouth. The complainant, who acknowledged that the Queen was being impersonated for the purposes of the ad, objected that the ad was disrespectful and offensive. The ASA decided the ad was unlikely to cause serious or widespread offence. (See ‘Privacy: Royal Family’).
One marketer used cartoon caricatures of the Queen, the Prince of Wales and David and Victoria Beckham eating pizza. The ASA noted that permission had not been sought and that images of the Royal Family should not normally be used without permission. Nevertheless, the ASA concluded that, because it used a cartoon-style, the ad had not breached the Code. Some years ago, the ASA received a complaint about ads that featured two men with long hair and moustaches and wearing white running vests and light blue shorts. David Bedford, the former long-distance runner, objected that the ads were based on his image and the marketer should have obtained his permission. The ASA considered that, because the ads resembled the complainant during the 1970s, people were more likely to see the runners as caricatures of 1970s athletes than to recognise them as being based on him. The ASA considered, moreover, that the ads were light-hearted and humorous and were neither offensive nor likely to imply David Bedford approved or endorsed the advertised service.
Nevertheless, marketers should seek legal advice if they are in any doubt about using impersonators or lookalikes. See the other sections on ‘Privacy’.
Last modified : 29 March 2012