failure to caption music/songs doesn't make "close captioned" label misleading

Anthony v. Buena Vista Home Entertainment Inc., 2016 WL 6836950, No. 2:15–cv–09593 (C.D. Cal. Sept. 28, 2016)

Plaintiffs, who are deaf or hard of hearing, alleged that defendants sold (1) DVDs enclosed in packaging with language advertising the DVDs as subtitled, (2) movies advertised as captioned, and (3) movies or TV shows advertised as subtitled via online streaming services. However, the movies and TV shows were in fact not fully subtitled, specifically lacking subtitles for music and song lyrics, which are often used to explain the premise or theme of a movie or TV show, and can sometimes be crucial to developing a plot (e.g., musicals). They brought the usual California claims as well as a claim for violation of California’s Unrah Civil Rights Act.  The court found that plaintiffs failed to allege that reasonable consumers would be deceived; “whether such content should include subtitled song lyrics is quite distinct from whether consumers expect it to.”  Plaintiffs might have hoped that industry practice would change, but plaintiffs even alelged that “the practice of not subtitling song/music lyrics is frustratingly widespread,” and they each purchased or rented “numerous DVDs” in which the content “including music lyrics, was not subtitled or captioned.”

Plaintiffs argued that they were a particularly susceptible audience, and therefore the ads had to be measured by the impact they’d have on members of that audience instead of by the effect on reasonable consumers. But such a standard applies “to audiences who are known to be particularly susceptible to advertising, such as small children, not vulnerable audiences in general.” Plaintiffs didn’t explain why they would be more susceptible to persuasive advertising than any other reasonable consumers.

For the same reasons, plaintiffs failed to adequately allege reliance.  Also, plaintiffs alleged that they didn’t have any choices about whom to buy from, since only defendants produced captioned versions of their movies or shows.  “In effect, the Plaintiffs are conceding that they would buy or rent the products even without full captioning and subtitling, as there are no better alternatives available to them.”

Also, and worryingly in a broader sense, the court found that plaintiffs’ warranty claims failed because they didn’t allege either a “sale” or a “consumer good” as required by the Beverly–Song Act. The claims involved the video content of the DVDs, streaming services, or live movies, and the court concluded that it was this content that would have to be “sold” to be subjected to the act. But title to the content remained in the copyright owner; “[t]he consumer may purchase title to the physical DVD, but only purchases a license to view the expressive content.”  Thus, there was a sale as to the physical DVD, but not as to the DVD content. The same analysis meant there was no “consumer good” at issue.

The Unruh Act claims failed for want of alleged intentional discrimination.

The court also found that California’s anti-SLAPP law applied, given that captioning of videos is protected speech.  Plaintiffs argued that they were challenging the advertising, not the absence of captions as such. But the “principal thrust” of the warranty and Unruh Act claims was “clearly the captions and subtitles themselves, not the labeling on the box,” since the warranty claims were based on allegations that the movies and shows didn’t meet the particular needs of the deaf and hard of hearing community because they weren’t fully subtitled. “Such claims stem from the captions themselves, as changing the labeling would not ensure that the movies and shows met the needs of the Plaintiffs as stated in the Complaint.”  Nor would a labelling change provide plaintiffs with the relief they sought under the Unruh Act.

Although the argument that the false advertising claims involved purely commercial speech rather than protected content carried more weight, it still failed, because the ads were acts “in furtherance of the Defendants’ right of free speech and are in connection with a public issue.”  The commercial speech exemption to the anti-SLAPP law doesn’t apply to actions against “any person or entity based upon the creation, dissemination, exhibition, advertisement, or other similar promotion of any dramatic, literary, musical, political, or artistic work, including, but not limited to, a motion picture or television program....”  

Because plaintiffs’ claims were legally insufficient and unsubstantiated, the court granted defendants’ motion to strike under the anti-SLAPP law.