When does product placement become false advertising?

By Eriq Gardner

Product placement has become so omnipresent in films and TV that we hardly think twice when we see it. But what happens if the film or show misrepresents the product?

On the NYT's Freakonomics blog, Ian Ayres asks this question after seeing the Fox comedy "Date Night."

In one key scene, Steve Carell's character is desperate to look at photos on his flash drive and asks a cab driver if he has a laptop. The cabbie hands over a Kindle, which does the job.

One problem: Kindles don't read flash drives.

Ayres asks if this possible product placement deception violates Section 43(a) of the Lanham Act, prohibiting false or misleading advertising.  Perhaps moviegoers who bought a Kindle after seeing the film may be tempted to sue when they find out the truth. Or maybe Apple feels itself injured by anybody who saw the film and purchased a Kindle instead of its iPad. Could it sue?

A competitor like Apple might have standing to bring a lawsuit, but any potential plaintiff could have difficulty proving that people really believe the capabilities of the products they see on screen.

"We don't expect to get the same performance out of our cars as James Bond does," says Rebecca Tushnet, a professor at Georgetown University Law. "And we probably don't expect our devices to react as fast as TV/movie devices (do) in real life."

Martin Schwimmer, a partner at Moses & Singer, says it would likely require "really expensive surveys" to establish that consumers get the wrong perception. He points out two cases, Wham-O v. Paramount Pictures and Caterpillar v. Disney, where the plaintiffs had such trouble, although both cases involved trademark dilution, not false advertising claims.

Still, it's hard to believe that product integration is effectively immune from false advertising laws. After all, why else would an advertiser pay money to be involved in a movie if there wasn't some benefit of enhanced perception?