News
Entertainment & Sports
Feb. 22, 2002
SLAPP Victory Doesn't Moot Movie-Review Controversy
Focus Column - By Harrison J. Dossick - The lawsuits claim that by not disclosing that critics may have received something of value when the picture was screened, the studios have engaged in unfair business practices.
By Harrison J. Dossick
Over the last year, Hollywood has been scrutinized for the manner in which it markets motion pictures to the public. The unwelcome attention was brought about, in part, because of events like the tragedy in Columbine. Concerns over these matters caused some members of Congress to question openly whether studios wrongly target their marketing campaigns for R-rated pictures to younger audiences.
In the wake of these events, each of the major studios then found themselves named in one or more class actions that alleged that they had engaged in acts of false advertising and unfair business practices for the manner in which they reviewed and promoted their films.
The studios' legal problems started early last year, after a Time Magazine reporter broke a story about a critic named David Manning. Manning, it seemed, reviewed motion pictures for the rural Connecticut newspaper, The Ridgefield Press. Manning, it also seemed, often was one particular studio's source for favorable one-line endorsements of films that did not receive many favorable reviews from the better-known critics.
According to the Time article, however, Manning actually did not write for The Ridgefield Press, or, for that matter, for any other publication. Rather, he was the creation of the studio's own marketing department. In other words, Manning was fictitious. After the Time story was published, The Ridgefield Press confirmed that they had never heard of Manning. The studio in question immediately launched an investigation. After issuing an apology, the studio placed several of its marketing executives on hiatus and announced that it had taken other corrective measures.
Unfortunately for this studio, the questions surrounding its marketing practices did not end with its apology. The studio was named in a class action for allegedly engaging in acts of false advertising and unfair business practices. Rezec v. Sony Pictures Entm't, BC251923 (June 7, 2001). The plaintiffs, comprising all those who allegedly purchased tickets to certain films, seeks disgorgement of all sums received by the studio on each film "reviewed" by Manning.
In a separate and unrelated event, this same studio later admitted that it had used company employees instead of actual patrons to give on-camera testimonials about a film that they apparently had just seen. After this story broke, it was reported that other studios also have used paid actors in the place of real audience members. No lawsuits were directed at these particular practices, but a number of studios nonetheless publicly announced a decision to change their practices, or cease using testimonial ads altogether.
By far the most wide-reaching case directed at motion-picture marketing practices came shortly thereafter, in the form of nine separate class actions that named every major studio as defendants. Rector v. Sony Corp. of Am., BC253397 (L.A. Super. Ct. June 29, 2001) (consolidated with BC253398 to BC253406).
The plaintiffs in these consolidated actions were several individuals, as well as an alleged public-interest group called "Citizens For Truth in Movie Advertising," all of whom each claimed to represent "several million people" who allegedly were fraudulently induced to purchase tickets to the defendants' motion pictures after reading certain alleged false and misleading motion-picture reviews.
The central problem, according to the Rector complaints, is that motion-picture studios invite members of the press to attend free screenings and other promotions, often referred to in the business as "press junkets." Of course, events of this nature are not unique to the film business. Other industries have similar practices.
In the case of the movie business, junkets sometimes are held at posh resorts (but sometimes they are not), and the studios may pay not only for food and drink, but also for transportation and accommodations. According to the Rector complaint, reviewers often leave the event with an assortment of branded marketing items, such as mouse pads, key rings, coffee mugs and T-shirts.
Even though the existence of these events by no means has led to the extinction of the unfavorable (or even the occasional scathing) movie review, the Rector lawsuits claim that by not disclosing to movie patrons that particular critics may have received something of value at the time the picture was screened, the studios have engaged in false advertising practices and unfair business practices.
The plaintiffs also claim that these junkets wrongfully influence critics to issue positive comments about bad movies and that by failing to disclose that some critics attend these functions, the studios have fraudulently induced people to purchase tickets. Lastly, the Rector plaintiffs later amended their complaints to allege that the fraudulent and deceptive practices of the studios include showing scenes in "trailers" that ultimately are not part of the motion picture.
The studios responded by invoking the provisions of Code of Civil Procedure Section 425.16, California's anti-SLAPP statute. Pursuant to Section 425.16, California courts have the authority to dismiss lawsuits involving speech activities at the earliest possible juncture unless the plaintiff is able to come forward with evidence demonstrating a probability of success on the merits of his or her claim. Church of Scientology v. Wollersheim, 42 Cal.App.4th 628 (1996). Under Section 425.16, an affected defendant may bring a motion to strike at the outset of the case.
The issues presented by the motion to strike were whether the Rector actions arose from an act in furtherance of the right of free speech, whether the speech concerns a public issue and whether the plaintiffs, in the face of such a showing, would then be able to meet their burden under the anti-SLAPP statute to present competent evidence to show a probability of success on the merits.
As to the first issue, the defendants cited to the numerous cases finding that motion pictures are a form of protected speech under the First Amendment (see e.g., Joseph Burstyn Inc. v. Wilson, 343 U.S. 495 (1952); Guglielmi v. Spelling-Goldberg Prods., 25 Cal.3d 860 (1979)), as well as other authorities holding that reviews and criticism of motion pictures are entitled to First Amendment protection (Moldea v. New York Times Co., 22 F.3d 310 (D.C. Cir. 1994), Baker v. Los Angeles Herald Examiner, 42 Cal.3d 254 (1986)).
The defendants then argued that the sheer number of persons that the plaintiffs claimed to represent (millions of ticket purchasers), in and of itself, demonstrates that the "public issue" requirement had been met. On the strength of these and other arguments, the defendants argued that the plaintiffs' claims all should be dismissed because the plaintiffs had no admissible evidence to establish a probability of success on the merits.
The plaintiffs attempted to refute the contentions that their claims concerned matters of free speech by arguing that the intent of their lawsuit was only to bar fraudulent and misleading commercial speech, which, according to the plaintiffs, distinguished the speech at issue from the type of speech at issue in the First Amendment cases cited by the defendants.
As the plaintiffs argued, their lawsuit does not seek to impair the defendants' right to make motion pictures or to advertise their products, but rather seeks to prevent the defendants from doing so in a false and misleading manner. According to the plaintiffs, under authorities such as Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Counsel, 425 U.S. 748 (1976), to the extent speech is false and misleading, it is unlawful and thus not protected by the First Amendment.
As to the second prong of the test - whether the speech relates to a public issue - the plaintiffs argued that while the means of dissemination were public (newspapers and other media), the issue at stake was not one of public concern because motion-picture reviews are used to advance a private interest (corporate profit), rather than a public interest.
Finally, as to the burden to come forward with evidence of probable success, the plaintiffs argued that their ability to do so was hampered by the fact that as a matter of procedure, once an anti-SLAPP motion has been filed, discovery is automatically stayed. Thus, they had not yet been given an opportunity to gather all their evidence.
After oral argument, the court took the matter under submission and, on Jan. 24, issued a short, concise ruling granting the defendants' motion to strike. Without further comment or elaboration, the court's one-page order provides that "[t]he claims alleged fall within the statute as protected speech on public issues. The burden then shifts to plaintiffs to establish a probability that plaintiffs will prevail on their claims. Plaintiffs have failed to make such a showing for the reasons articulated by defendants."
Although the court's ruling on the anti-SLAPP motion to strike came as welcome news to the studio defendants, the order provides no guidance for how courts may decide future cases. And, because this order only presents the view of one trial court, it is not binding on other courts in this state that may face similar issues.
As a consequence, whether this decision or any of the marketing-related lawsuits will cause the studios to make wholesale changes to their marketing practices remains to be seen. But, perhaps the more important question is, should they? In considering this question, other (still-unanswered) questions arise, including:
• How much influence do movie critics actually have over our decisions (after all, many poorly reviewed pictures have generated huge box-office returns, while many critically acclaimed pictures have struggled to find an audience)?
• How much attention do moviegoers really pay to one-line quotes in newspaper ads?
• How much are movie selections influenced by other factors, such as who is starring in the picture, the genre or subject matter, a catchy trailer or an effective television ad or billboard campaign?
• How much are choices influenced by the words of well-known veteran critics like Roger Ebert, Gene Shalit or Kenneth Turan, as opposed to a quote from someone one doesn't recognize who writes for a paper one doesn't read?
• How many people end up seeing a particular movie not on the basis of any review, but simply because it just happens to be playing at a convenient time and place?
The summary dismissal of the Rector case, at least for now, moots any judicial debate on or determination of these and other related issues. But, away from the courts, the views of Congress and other politicians apparently have influenced the marketing practices of film distributors.
For instance, studios now tend not to buy ad time for their R-rated pictures on teen-oriented shows, and ads for R-rated pictures include a description of the adult-oriented content. For example, some television and radio ads, and even some posters, now contain a warning like "this picture has been rated R for graphic violence, drug use and sexual content. No one under 17 will be admitted without a parent or guardian."
Thus far, these practices, although voluntary, undoubtedly have been adopted in the hope that such proactive measures will dissuade Congress from attempting to enact new, restrictive legislation that will mandate where, how and to whom motion pictures and other forms of entertainment can be advertised.
Harrison J. Dossick, a litigation partner in the entertainment and media department of Katten Muchin Zavis in Los Angeles, specializes in motion-picture, television, music and Internet litigation matters.
Over the last year, Hollywood has been scrutinized for the manner in which it markets motion pictures to the public. The unwelcome attention was brought about, in part, because of events like the tragedy in Columbine. Concerns over these matters caused some members of Congress to question openly whether studios wrongly target their marketing campaigns for R-rated pictures to younger audiences.
In the wake of these events, each of the major studios then found themselves named in one or more class actions that alleged that they had engaged in acts of false advertising and unfair business practices for the manner in which they reviewed and promoted their films.
The studios' legal problems started early last year, after a Time Magazine reporter broke a story about a critic named David Manning. Manning, it seemed, reviewed motion pictures for the rural Connecticut newspaper, The Ridgefield Press. Manning, it also seemed, often was one particular studio's source for favorable one-line endorsements of films that did not receive many favorable reviews from the better-known critics.
According to the Time article, however, Manning actually did not write for The Ridgefield Press, or, for that matter, for any other publication. Rather, he was the creation of the studio's own marketing department. In other words, Manning was fictitious. After the Time story was published, The Ridgefield Press confirmed that they had never heard of Manning. The studio in question immediately launched an investigation. After issuing an apology, the studio placed several of its marketing executives on hiatus and announced that it had taken other corrective measures.
Unfortunately for this studio, the questions surrounding its marketing practices did not end with its apology. The studio was named in a class action for allegedly engaging in acts of false advertising and unfair business practices. Rezec v. Sony Pictures Entm't, BC251923 (June 7, 2001). The plaintiffs, comprising all those who allegedly purchased tickets to certain films, seeks disgorgement of all sums received by the studio on each film "reviewed" by Manning.
In a separate and unrelated event, this same studio later admitted that it had used company employees instead of actual patrons to give on-camera testimonials about a film that they apparently had just seen. After this story broke, it was reported that other studios also have used paid actors in the place of real audience members. No lawsuits were directed at these particular practices, but a number of studios nonetheless publicly announced a decision to change their practices, or cease using testimonial ads altogether.
By far the most wide-reaching case directed at motion-picture marketing practices came shortly thereafter, in the form of nine separate class actions that named every major studio as defendants. Rector v. Sony Corp. of Am., BC253397 (L.A. Super. Ct. June 29, 2001) (consolidated with BC253398 to BC253406).
The plaintiffs in these consolidated actions were several individuals, as well as an alleged public-interest group called "Citizens For Truth in Movie Advertising," all of whom each claimed to represent "several million people" who allegedly were fraudulently induced to purchase tickets to the defendants' motion pictures after reading certain alleged false and misleading motion-picture reviews.
The central problem, according to the Rector complaints, is that motion-picture studios invite members of the press to attend free screenings and other promotions, often referred to in the business as "press junkets." Of course, events of this nature are not unique to the film business. Other industries have similar practices.
In the case of the movie business, junkets sometimes are held at posh resorts (but sometimes they are not), and the studios may pay not only for food and drink, but also for transportation and accommodations. According to the Rector complaint, reviewers often leave the event with an assortment of branded marketing items, such as mouse pads, key rings, coffee mugs and T-shirts.
Even though the existence of these events by no means has led to the extinction of the unfavorable (or even the occasional scathing) movie review, the Rector lawsuits claim that by not disclosing to movie patrons that particular critics may have received something of value at the time the picture was screened, the studios have engaged in false advertising practices and unfair business practices.
The plaintiffs also claim that these junkets wrongfully influence critics to issue positive comments about bad movies and that by failing to disclose that some critics attend these functions, the studios have fraudulently induced people to purchase tickets. Lastly, the Rector plaintiffs later amended their complaints to allege that the fraudulent and deceptive practices of the studios include showing scenes in "trailers" that ultimately are not part of the motion picture.
The studios responded by invoking the provisions of Code of Civil Procedure Section 425.16, California's anti-SLAPP statute. Pursuant to Section 425.16, California courts have the authority to dismiss lawsuits involving speech activities at the earliest possible juncture unless the plaintiff is able to come forward with evidence demonstrating a probability of success on the merits of his or her claim. Church of Scientology v. Wollersheim, 42 Cal.App.4th 628 (1996). Under Section 425.16, an affected defendant may bring a motion to strike at the outset of the case.
The issues presented by the motion to strike were whether the Rector actions arose from an act in furtherance of the right of free speech, whether the speech concerns a public issue and whether the plaintiffs, in the face of such a showing, would then be able to meet their burden under the anti-SLAPP statute to present competent evidence to show a probability of success on the merits.
As to the first issue, the defendants cited to the numerous cases finding that motion pictures are a form of protected speech under the First Amendment (see e.g., Joseph Burstyn Inc. v. Wilson, 343 U.S. 495 (1952); Guglielmi v. Spelling-Goldberg Prods., 25 Cal.3d 860 (1979)), as well as other authorities holding that reviews and criticism of motion pictures are entitled to First Amendment protection (Moldea v. New York Times Co., 22 F.3d 310 (D.C. Cir. 1994), Baker v. Los Angeles Herald Examiner, 42 Cal.3d 254 (1986)).
The defendants then argued that the sheer number of persons that the plaintiffs claimed to represent (millions of ticket purchasers), in and of itself, demonstrates that the "public issue" requirement had been met. On the strength of these and other arguments, the defendants argued that the plaintiffs' claims all should be dismissed because the plaintiffs had no admissible evidence to establish a probability of success on the merits.
The plaintiffs attempted to refute the contentions that their claims concerned matters of free speech by arguing that the intent of their lawsuit was only to bar fraudulent and misleading commercial speech, which, according to the plaintiffs, distinguished the speech at issue from the type of speech at issue in the First Amendment cases cited by the defendants.
As the plaintiffs argued, their lawsuit does not seek to impair the defendants' right to make motion pictures or to advertise their products, but rather seeks to prevent the defendants from doing so in a false and misleading manner. According to the plaintiffs, under authorities such as Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Counsel, 425 U.S. 748 (1976), to the extent speech is false and misleading, it is unlawful and thus not protected by the First Amendment.
As to the second prong of the test - whether the speech relates to a public issue - the plaintiffs argued that while the means of dissemination were public (newspapers and other media), the issue at stake was not one of public concern because motion-picture reviews are used to advance a private interest (corporate profit), rather than a public interest.
Finally, as to the burden to come forward with evidence of probable success, the plaintiffs argued that their ability to do so was hampered by the fact that as a matter of procedure, once an anti-SLAPP motion has been filed, discovery is automatically stayed. Thus, they had not yet been given an opportunity to gather all their evidence.
After oral argument, the court took the matter under submission and, on Jan. 24, issued a short, concise ruling granting the defendants' motion to strike. Without further comment or elaboration, the court's one-page order provides that "[t]he claims alleged fall within the statute as protected speech on public issues. The burden then shifts to plaintiffs to establish a probability that plaintiffs will prevail on their claims. Plaintiffs have failed to make such a showing for the reasons articulated by defendants."
Although the court's ruling on the anti-SLAPP motion to strike came as welcome news to the studio defendants, the order provides no guidance for how courts may decide future cases. And, because this order only presents the view of one trial court, it is not binding on other courts in this state that may face similar issues.
As a consequence, whether this decision or any of the marketing-related lawsuits will cause the studios to make wholesale changes to their marketing practices remains to be seen. But, perhaps the more important question is, should they? In considering this question, other (still-unanswered) questions arise, including:
• How much influence do movie critics actually have over our decisions (after all, many poorly reviewed pictures have generated huge box-office returns, while many critically acclaimed pictures have struggled to find an audience)?
• How much attention do moviegoers really pay to one-line quotes in newspaper ads?
• How much are movie selections influenced by other factors, such as who is starring in the picture, the genre or subject matter, a catchy trailer or an effective television ad or billboard campaign?
• How much are choices influenced by the words of well-known veteran critics like Roger Ebert, Gene Shalit or Kenneth Turan, as opposed to a quote from someone one doesn't recognize who writes for a paper one doesn't read?
• How many people end up seeing a particular movie not on the basis of any review, but simply because it just happens to be playing at a convenient time and place?
The summary dismissal of the Rector case, at least for now, moots any judicial debate on or determination of these and other related issues. But, away from the courts, the views of Congress and other politicians apparently have influenced the marketing practices of film distributors.
For instance, studios now tend not to buy ad time for their R-rated pictures on teen-oriented shows, and ads for R-rated pictures include a description of the adult-oriented content. For example, some television and radio ads, and even some posters, now contain a warning like "this picture has been rated R for graphic violence, drug use and sexual content. No one under 17 will be admitted without a parent or guardian."
Thus far, these practices, although voluntary, undoubtedly have been adopted in the hope that such proactive measures will dissuade Congress from attempting to enact new, restrictive legislation that will mandate where, how and to whom motion pictures and other forms of entertainment can be advertised.
Harrison J. Dossick, a litigation partner in the entertainment and media department of Katten Muchin Zavis in Los Angeles, specializes in motion-picture, television, music and Internet litigation matters.
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