Ana De Armas appeared in the trailer for the 2019 film Yesterday, but she isn’t in the movie.
Fans who claim they only paid to rent the movie through Amazon because of her appearance in the trailer are suing Universal for false advertising.
The lawsuit is a proposed class action on behalf of everyone in California and Maryland who paid to see the movie.
The plaintiffs allege that “consumers were promised a movie with Ana De Armas by the trailer” but didn’t receive such a movie, so they “were not provided with any value for their rental or purchase.”
They claim that Universal couldn’t rely on the fame of the actors who actually appear in the movie to promote sales, so they used De Armas despite cutting her from the cast.
This case reminds me of the class action against Sega over the trailers for the videogame Aliens: Colonial Marines.
In that case, the plaintiffs claimed the promo videos for the game showed gameplay elements that weren’t included in the game itself.
Sega settled that case for $1.25M.
It will be interesting to see how Universal handles this one.
In the meantime, this is a good reminder to ensure that your ads don’t include claims about your products or services that might mislead some consumers as to the qualities and features of their purchases.
False advertising litigation more generally is common and expensive to deal with, even if you’re ultimately right.
Limiting risk early, where you can, will save time and money down the road.
Unless you’re the government, running lotteries is illegal in the U.S.
If you run a sweepstakes or giveaway as part of your NFT project (or anywhere else), you don’t want to risk having your promotion look like a lottery.
What’s the difference?
In a sweepstakes, entrants can win a prize for free based on chance alone.
No purchase, payment, or other consideration is needed, and the winner is picked at random.
In a lottery, the entrant has to give something of value (like buying a ticket or an NFT), called consideration.
So to avoid having your promotion be called a lottery, you need a free method of entry that counts the same as any paid methods.
It is a crime in every state to run a lottery.
And in California, you need to let people know, “clearly and conspicuously,” that no payment is necessary to enter.
As NFTs continue to grow in popularity, you can bet they will attract attention from regulators and plaintiffs’ lawyers.
It’s worth the effort to understand the risks you are taking with how you promote your NFT project, so that you can avoid a surprise lawsuit down the road.
If an influencer creates a TikTok promoting a brand, using music that’s not in TikTok’s commercial library, then that influencer risks committing copyright infringement unless they have a license from the rights owner.
And the brand and any ad agency involved in the campaign can be liable for the infringement too.
That might seem surprising—it’s extremely common to see popular songs in the background of influencer content.
But just because everyone is doing it doesn’t mean it’s allowed.
Sony Music’s recent lawsuit against Gymshark is just one example of how this problem can rear its head.
Sony sued Gymshark over hundreds of TikToks and IG videos that “include sound recordings featuring such chart-topping and award-winning artists as Beyoncé, Britney Spears, A$AP Rocky, and Calvin Harris.”
Sony’s complaint lays out how Gymshark pays influencers to create videos wearing and promoting Gymshark products and including popular songs.
Sony points to the IG and TikTok terms of service to support the infringement theory:
IG’s TOS says: “Use of music for commercial or non-personal purposes in particular is prohibited unless you have obtained appropriate licenses.”
TikTok’s says “NO RIGHTS ARE LICENSED WITH RESPECT TO SOUND RECORDINGS AND THE MUSICAL WORKS EMBODIED THEREIN THAT ARE MADE AVAILABLE FROM OR THROUGH THE SERVICE.”
Sony specifically alleges the “third-party influencer who created Gymshark videos have likewise infringed Plaintiffs’ copyrights” and that Gymshark is liable for contributing to that infringement.
So what the lesson from this?
If influencers have the creative freedom to pick sounds for their content, they should clear those sounds with the brand before posting.
The obligation to clear sound choice before posting is something that can and should be addressed by the brand/agency in the influencer agreement.
And if you’re the agency or the brand, claiming you didn’t know about the music or that you needed to clear rights won’t help you much from a legal perspective.
Gymshark has until January 25 to respond to the lawsuit, and it has told the court it plans to move to dismiss.
I’ll provide updates here as the case progresses.