False advertising claims based on the advertising and promotion of films, television, and even music are being made at an alarming rate. Subjects of films seeking to suppress portrayals that they do not like have added to their right of publicity claims an assertion that the promotion of the films falsely claim that it is a true story. Given the expansive definition of "advertising" under California false advertising law laid down by the California Supreme Court in Nike v. Kasky, advertising and promotion of entertainment appeared vulnerable to claims under California false advertising law.
In rejecting such claims by Olivia de Havilland over her portrayal in Lifetime's "Feud," the California Court ruled that the First Amendment protected expressive works from such claims, but did not analyze the elements of the state law claim. Now the California Court of Appeals has provided an application of California false advertising law to entertainment, and it found that entertainment is different.
In a recent decision, Serova v. Sony Music Entm't, the court upheld a motion to dismiss a claim that the cover of the album "Michael" misrepresented that all of the 10 tracks were sung by Michael Jackson. The class action plaintiff contended three were not. The California Court of Appeals analyzed Kasky and found that promotion of entertainment is entitled to additional protection. The court dismissed the false advertising claim, holding that the album cover did not merely promote the sale of the album. It was also a statement on a disputed issue of public interest entitled to First Amendment protection.
The problem was that, in Kasky, the Nike public relations effort also addressed disputed issues of public interest: Nike's labor practices. The court distinguished Kasky on the ground that Nike had full knowledge of its own labor practices. Here, the court said that Sony did not definitively know whether, as Jackson family members contended, the three contested tracks were indeed Michael. Noting that false speech is not protected by the First Amendment and fully actionable as false advertising, the court said that the album cover was a statement on a controversial issue. It buttressed this holding by noting that before the album was released, the controversy had been aired with Sony publishing the results of the independent investigation of the matter.
Bottom line: the decision will be helpful to advertisers of entertainment properties, and should help head off claims that properties were falsely promoted as a true story when there are disputed issues of historical fact.
As is always the case in false advertising claims, the question is all about the context -- what does the audience to whom the promotion is directed take away form the advertising? Future plaintiffs arguing about what the audience understands to be the meaning of "based on a true story" as opposed to "inspired by a true story," at least in California, will now have to overcome the special status of promotion for expressive works.