False Advertising Claims Based on Authorship Hoax Rejected

This posting was written by Bill Zale, editor of CCH Advertising Law Guide.

A recent court decision sheds light on an unsettled area of intellectual property and advertising law—whether misrepresenting authorship can violate the false advertising provision of the Lanham Act. The answer, in the court’s view, was “no.”

A film production company could not pursue Lanham Act false advertising claims against a publisher for its hoax in advertising and marketing a book as being based on the “real-life” experiences of a non-existent author, the federal district court in New York City ruled. The film production company, which had purchased an option on film rights to a book, can pursue a common law fraud claim against the publisher, the court held.

In large part, the film product company’s Lanham Act Sec. 43(a)(1)(B) false advertising allegations mirrored its false authorship claims under Sec. 43(a)(1)(A), which were foreclosed by the U.S. Supreme Court’s decision in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003). The film company nonetheless argued that Dastar left open the possibility that some false authorship claims could be vindicated under the auspices of Sec. 43(a)(1)(B)'s prohibition on false advertising.

However, the holding in Dastar necessarily implied that the Sec 43(a)(1)(B) false advertising prohibition against misrepresenting the “nature, characteristics, [and] qualities” of goods, services, or commercial activities could not be read to refer to authorship, the court reasoned. If authorship were a characteristic or quality of a work, then the very claim Dastar rejected under Sec. 43(a)(1)(A) would have been available under Sec. 43(a)(1)(B), in the court’s view.

Judge Jed Rakoff’s decision in Antidote Interantional Films, Inc. v. Bloomsbury Publishing, PLC, No. C 06-05289 WHA, U.S. District Court, Southern District of New York, will be reported in the CCH Advertising Law Guide.