Balkinization: The Lanham Act Goes to the Movies

Crosspost from Freakonomics:

An occupational hazard of teaching intellectual property for the first time is that IP violations now repeatedly jump to mind. (I’m a bit like the hypochondriac med student who imagines encountering all the illnesses she just studied.)

Last week was no exception. My beloved spouse and I had a date night where we went to see the movie Date Night. (I’m a big fan of both Tina Fey and Steve Carell, but, like many critics, I was underwhelmed by the movie. The extended dancing scene was a particular misstep.) Aside from the movie’s artistic merit, I, as a newbie IP professor, was surprised by the movie’s use of a Kindle, the Amazon book reader.

***Mild Spoiler Alert***

Steve Carell’s character asks a New York cab driver if he has a laptop or some device that can read a flash drive (also referred to in the movie by the less tech-savvy Tina Fey character as a “computer stickie thing”). The driver responds that he has a Kindle, and Carell’s character then proceeds to insert the flash drive into the Kindle and immediately display certain incriminating pictures taken from the drive.

As an initial matter, do cab drivers really have Kindles in their cabs? Here’s a mini-bleg: please add a comment if you’ve seen a cab driver with a Kindle (or if you’re a cab driver and keep one in your car from time to time). I’d be amazed if 10 cab drivers in New York City have Kindles currently in their cabs. I mention the implausibility of finding a Kindle because it makes me think that Amazon probably paid for the “product placement.” (I have ridden in many cabs where the driver has a flash drive-compatible laptop, which would have been the more natural device for the driver in the movie to offer.)

But my larger concern is that Kindles can’t read flash drives. They don’t have USB ports. (Second mini-bleg: is there some snap-on adapter that would allow you to download files from a flash drive? This user board suggests I’m not alone in thinking that the movie attributes to the Kindle a feature that it simply doesn’t have.)
If my two conjectures are correct (i.e., that Amazon paid for the Kindle product placement, and that Kindles can’t read flash drives in the way depicted in the movie), then it seems to me that the movie violates the Lanham Act.

You see, Section 43(a) of the Lanham Act (our nation’s core trademark provision) prohibits false or misleading advertising:

Any person who, on or in connection with any goods or services . . . uses in commerce any word, term, name, symbol, or device . . . which in commercial advertising or promotion, misrepresents the nature, characteristics [or] qualities . . . of his or her or another person’s goods . . . shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

If Amazon paid for the product placement, it qualifies as a “commercial advertis[ement] or promotion” that “misrepresents the nature, characteristics [or] qualities” of the Kindle.

I think it would be fine for movies to take some artistic license with the qualities of a product if it is clear to the audience that the qualities are the script writer’s fantasy. For example, if Carell and Fey traveled through time by unlocking a hidden Kindle time-machine function, I don’t think there would be any liability (even if Amazon paid for the placement).

But what is troubling about the Kindle reference in “Date Night” is that it is not depicted as fantasy, but as an actual attribute of the product. There may be actual audience members who go out and buy a Kindle in part because of the movie’s depiction, and then are surprised to learn that the device cannot download files directly from a flash drive.

Any competitor “who believes that he or she is or is likely to be damaged” by this misrepresentation has standing to bring suit. Heads up Apple, Microsoft, and Barnes & Noble: you have a colorable claim. If I were the maker of the Onda VX560, I’d be particularly put out by “the ad” because the VX560 reader has a USB port and can actually download files from a flash drive.

I say this with no animus toward Amazon. Indeed, I love my Kindle. It let me discover something about SuperFreakonomics that I never would have found without it. The Kindle has improved the quality of my reading experience (even if I haven’t figured out how to download files from my flash drive).

But in a world where product placements are on the rise, it is entirely appropriate that our deceptive advertising laws respond. Merely wrapping an ad inside a work of art should not empower advertisers to misrepresent the attributes of their products.