Misleading us to the movies

Ray Cha pointed me to this column by David Pogue, discussing the extreme divergence between the trailer for National Treasure 2 and the reality:

Rearranging scenes in the trailer is one thing. But what about this business of putting stuff in the trailer -- a *lot* of stuff -- that isn’t in the movie at all? If they can get away with “National Treasure”-style misrepresentation, what’s to stop other moviemakers from putting special effects, witty lines, exotic locales and hot-looking actors into *their* trailers, just to get us to go to a movie that doesn’t have any of those things?

The answer is, I think, that materially misleading descriptions of content -- here, scenes that are funnier and more exciting than the footage actually contained in the movie -- are false advertising, even though the product is an expressive one. It's more usual to see trademark/right of publicity claims against ads for expressive works, but we can use a variant of the Rogers v. Grimaldi test to ask whether the ad explicitly misleads about the content of the work. (Rogers also asks whether the challenged content is artistically relevant to the work being advertised; arguably, missing footage isn't artistically relevant because it isn't present, but let's give the filmmakers a pass on that part.)

Does padding a trailer with scenes that aren't in the movie count as explicitly misleading? I think the necessary implication of a trailer, absent special circumstances (like the Sweeney Todd ads that are "making-of" trailers showing interviews and recording studios), is that the scenes shown are actually in the movie, and thus the trailer Pogue describes was, in Lanham Act terms, explicitly false.

I imagine that the filmmakers did not intend to make a trailer for a different, and apparently better, movie, but that something happened in the editing room -- some of the missing scenes might have been edited out to keep the film suited to short attention spans, while it sounds as if some other elements might have been reshot. But the Lanham Act, of course, is strict liability -- the fact that a product changes between the time it's advertised and the time it's purchased is little consolation to the deceived purchaser or to competitors. (And even without strict liability, if the filmmakers leave the deceptive ad running after the editing occurs, they might still have guilty knowledge.)

A court might be persuaded to require some scienter where expressive products like movies are concerned -- but it's interesting that in the trademark/publicity context, the tests developed to cabin the Lanham Act do not look at scienter, even though that's a traditional way of putting First Amendment constraints on torts. Perhaps that's because a producer will rarely, if ever, have reason to know that using a trademark or a famous person's name misleads about affiliation. A scienter requirement would therefore put serious pressure on one of modern trademark doctrine's weak points, which is the extent to which we -- courts, marketers, consumers -- should presume that other people think that referring to a trademark or a famous person requires permission. What counts as reckless indifference or negligence about likely confusion? Given that most cases involve only circumstantial evidence of likely confusion, it's hard to figure that out.

Anyway, the filmmakers might have better luck against a consumer lawsuit, if only because there's more doctrinal room in many state laws to add in a scienter requirement for expressive products. But if Pogue wanted his money back, I think he ought to get it.