–Dan Kelly, Attorney

If the Charlie Sheen train wreck has not offered enough fodder for your idle moments, this week Aflac fired Gilbert Gottfried as the voice of the Aflac Duck due to tasteless jokes that Gottfried tweeted in the wake of last week’s earthquake and tsunami in Japan.  Where Sheen was the face of a hugely successful syndicated television show, Gottfried was the voice of the mascot for a Fortune 500 insurance company.  According to its own press release, Aflac “will immediately set plans in motion to conduct a nationwide casting call to find a new voice of the iconic Aflac Duck.”  (By the way, Steve mentioned the Aflac Duck in an eerily prophetic post here about crisis management in the wake of Tiger Woods’ misbehavior.)

This is a PR and marketing headache for Aflac.  It will not be an easy separation–Gottfried is the voice of the Aflac Duck.  The sound of the Aflac duck quacking “Aflac” is a registered trademark.  (You can hear the sound mark here.)  I personally don’t think of this registered version of the duck simply quacking “Aflac” as the trademark Aflac sound.  I think of the duck shouting “Aflac!” (kind of like Gilbert Gottfried) as the sound of the Aflac Duck. (Hear it at the end of this commercial.)

A situation like this can raise a host of potential intellectual property questions if not dealt with in advance, which, at Aflac’s level, they probably are.  For instance, how far does a well-known voice talent’s rights go if not clearly contracted in advance?  Can the company say, “we are searching for someone who sounds like Gilbert Gottfried?”  Can Gottfried ever shout “Aflac!” in public performance?

On the positive side, a situation like this can be an unparalleled opportunity for a creative agency.  Is it time for the duck to pass on because his iconic voice has vanished?  What backstories could explain a new or changed voice?  Faux auditions could provide a great deal of fodder for commercials.  In short, it’s time to make lemonade.

For the record, Gottfried has apologized.  There is also a petition afoot to reinstate Gottfried, the chief argument being that Gottfried has engaged tasteless humor for his entire career, so why fire him now.  As of this writing, a whopping 41 people have signed.  Good luck, Gilbert.  I’m sure a voice as distinctive as his will find work again.