Used to be that the “entertainment” industry was largely impervious to false advertising attacks but times have been tough of late. First the FTC revoked its “mirror image” rule which allowed you to write a book and then advertise the book without having to substantiate any of the claims (eating dandilion roots cures cancer) so long as your advertisement “mirrored” the language in the book. More recently a trailer for the movie, Drive, precipitated a class action lawsuit because, the plaintiff alleged, it overstated the amount of heart pounding, mind bending driving actually takes place in the movie.
Then, earlier this month a gamer disappointed with the newest installment in a beloved video game series asked the FTC to step in. El_Spiko as s/he is known online felt the pre-marketing hype for Mass Effect 3 did not live up to the experience. The trilogy follows the adventures of Commander Shepard who will be bringing the civilizations of the galaxy together as allies to take back Earth and repel the Reaper invasion. Players were promised they would “Experience the beginning, middle, and end of an emotional story unlike any other, where the decisions you make completely shape your experience and outcome”. Players were promised that their choices throughout not only Mass Effect 3, but the entire trilogy, will affect the fate of these civilizations and the endings the player can receive. El_Spiko told follow gamers that he had filed an FTC consumer complaint and urged other gamers to do the same “after the terrible ending that was in no way the product that had been advertised to me and the lack of any kind of response . . . I felt it was one of my only recourses.” The BBB has weighed in here and said that while some of these promises may be literally false (e.g., your decisions “completely affect” the game outcome) others are more subjective, such as the promise that “your choices drive powerful outcomes”.
And then last week a federal court in Montana held a hearing on a motion to dismiss a class action filed against Greg Mortenson, author of “Three Cups of Tea” and his publisher Penguin Group Inc. The complaint seeks damages for book-buyers allegedly defrauded by purported fabrications in the book. In a variation on the concept of “puffing” the publishers argued that fabrication is not uncommon in autobiographies and that nobody can justifiably rely on the contents of an autobiography. In another argument that the FTC has no doubt heard quite often in other contexts, the publishers argued that if they were required to ensure the truth and accuracy of everything an author says, “the costs of publishing books would be prohibitive.” One of Mortenson’s co-authors wrote that “authors [should not] be exposed to the debilitating expense of class-action litigation just because someone believes a book contains inaccuracies.” How many defense lawyers for false advertising class action defendants wouldn’t want to make (and win) that argument?
A decision in the case is forthcoming. In the meantime, those who specialize or dabble in the arts and entertainment field may want to pay closer attention to potential marketing and advertising liability.