When does product placement become false advertising?

« Hollywood Docket: Polanski denied; RedBox settles; Pirate Bay bunker? | Main | Actor wants $50 mil from Academy for being 'imprisoned' at the Oscars »

When does product placement become false advertising?

Fri Apr 23, 2010 @ 03:17PM PST

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.

Carrie_kindle 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?

TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d83451d69069e20133ece5b544970b

Listed below are links to weblogs that reference When does product placement become false advertising?:


The Hollywood Reporter
The Hollywood Reporter, Esq. blog focuses on how the entertainment and media industries are impacted and influenced by the law. It is edited by Matthew Belloni with contributions from veteran legal reporter Eriq Gardner and others. Before joining The Hollywood Reporter, Belloni was a lawyer at an entertainment litigation firm in Los Angeles. He writes a column for THR devoted to entertainment law. Gardner is a New York-based writer and legal journalist. Send tips or comments to Matthew.Belloni@thr.com

The Hollywood Reporter
Contact: Patrice Atiee at 323.525.2014 or patrice.atiee@thr.com


The Hollywood Reporter is Your Complete Film Resource

The columnists and bloggers who write for The Hollywood Reporter have their collective finger on the pulse of the boxoffice. Martin Grove and the other THR columnists deliver their thoughts on the film industry in an uncompromised style. Subscribe to THR today and get the latest views from these film experts and get the latest movie reviews as well.