The Sony Pictures TV commercial in which supposedly impartial moviegoers give rave-review testimonials to The Patriot is discussed in this week’s "Your Shot" (see column, below) by attorney Jeffrey A. Greenbaum. As it turns out, two of the on-camera thumbs-up were from Sony Pictures’ employees, creating an embarrassing public relations fiasco. One of the employees describes the film as a "perfect date movie."
Greenbaum—a partner in the New York-based media and entertainment law firm of Frankfurt Garbus Kurnit Klein & Selz—provides a primer on how to properly use consumers’ opinions in advertising, citing longstanding guidelines issued by the Federal Trade Commission. He offers several tips, including the fact that testimonials from consumers must be obtained without them initially knowing that their opinions may be used in advertising.
The attorney also advises agencies and/or producers to obtain endorser certificates. The certificate serves as a release that entitles use of the endorsement, that attests to the fact that the views expressed are the endorser’s actual views, and that requires the endorser to inform the agency and/or producer of any change in his or her views.
The State of Oregon didn’t take too kindly to the Sony Pictures deception—perpetrated not only in the aforementioned spot, but also in print ads carrying the favorable reviews of a movie critic named David Manning. The motion picture studio’s marketing department acknowledged that Manning was a fictitious character whose name was used to extol the virtues of such features as The Patriot, Vertical Limit, Hollow Man and A Knight’s Tale.
The state attorney general’s office in Oregon entered into talks with Sony Pictures and last month got a promise from the company that such misleading practices won’t happen again in its movie advertising. The promise came in the form of a legal document signed by studio representatives in Marion County Circuit Court. Per the pact, Sony Pictures pledged to use legitimate quotes from now on, or to clearly state if any person touting a film is a studio employee or has some connection to the company.
The penalty for not adhering to truth in advertising could prove to be steep. For each individual case of marketing fraud, Sony Pictures agreed to pay a $25,000 fine to each "victim"—potentially every person in the state who pays to see a film that was improperly promoted. The agreement is believed to be the first of its kind.
In Los Angeles Times and Associated Press reports, Jan Margosian, a spokesperson for the Oregon attorney general’s office, called the Sony Pictures deception "a basic violation" of Oregon’s consumer protection laws. Margosian conceded that many movie-review/testimonial ads employ "puffery," but she noted that even by those standards, it is inexcusable "to fabricate somebody—that’s going too far."
Oregon is one of several states that have decided to scrutinize Sony Pictures’ marketing practices. Results of those other states’ investigations were not yet known at press time. Presumably, those states are taking note of the precedent-setting agreement drawn up by Oregon’s state attorney general.
Meanwhile, individual moviegoers have taken separate legal action, reportedly filing class action lawsuits in Los Angeles, contending that they—and many customers throughout the country—were deceived into buying tickets for films.
