Finnegan's monthly review of essential decisions, key developments, evolving trends in trademark law, and more.
October 2011 Issue


“DŽive?” She Said

A recent headline on the Entertainment Weekly blog stated:  “Woman sues over misleading ‘Drive’ trailer.”  According to EW, a Michigan woman, Sarah Deming, sued because she said the trailer misled her into buying a ticket for the film.  Ms. Deming’s complaints listed in the lawsuit apparently included:

The disgruntled plaintiff not only wants her money back, but wants the producers to issue a corrective notice, so that other film buffs won’t suffer the same fate.  She’s even threatened to throw in a class-action suit for good measure.  A sequel, so to speak.

At first blush, the suit seems not just crazy, but symptomatic of our litigious society, where folks don’t just cry over spilled coffee, they sue over it and win.

Now, I’ve sat through my share of movies that didn’t quite synch with their enticing trailers.  Just recently, I rushed to see Take Shelter on its opening weekend, lured by a hauntingly compelling preview and strong critical praise.  The actual movie, however, was more excruciating than two hours in a dentist’s chair.  The audience collectively spent more time checking its watches than watching the screen.  But did it occur to me to sue for a refund?  Before last week, the thought would never have crossed my mind.  But the Drive dispute certainly got me thinking.  In the annals of cinema, there must have been dozens of missed opportunities for angry film buffs to cash in on similar grounds.  Here are just a few.

John Doe v. The Graduate—A suit for false representation under the Lanham Act to remedy economic loss and severe emotional distress experienced due to the false and deceptive nature of this movie’s title and portions of the trailer.  After all, it’s called THE GRADUATE, and the trailer shows a graduation party where Dustin Hoffman receives canny advice to pursue a career in “Plastics” (“Enuff said!”).  So plaintiff justifiably expected a story about a successful Ivy League track star who forges a lucrative business career.  Instead, the film features an adulterous alcoholic seductress, Mrs. Robinson (koo koo catchoo), and two sordid affairs between Hoffman’s character and the mother/daughter Robinson girls, culminating in Hoffman ditching his snazzy Alfa Romeo Spider, desecrating a church, and ruining a perfectly good wedding.  We don’t even learn whether Dustin and Elaine Robinson—last seen losing their smiles in the back seat of a getaway bus—live happily ever after?  A getaway bus!!!  That alone warrants treble damages!

Jane Doe v. Bridge on the River Kwai­—To whom it may concern, when I saw the coming attraction for Bridge, I took delight in the bright, wordless theme song and the Japanese Commander’s inspiring order for the men to “Be Happy in Your Work.”  Like seeing the Seven Dwarfs heading off to their own happy anthem “Whistle While You Work,” I expected a story of dedicated men using ingenuity and pluck to erect a bamboo jungle bridge that rivaled the famous brick and cable one in Brooklyn.  Nothing suggested a movie filled with deprivation, torture, pervasive suffering, and a wisecracking William Holden.  And to make matters worse, they destroy the bridge even before they get to install the EZ Pass lane!  I hereby demand that they cease and desist immediately all commercial screenings of this film.  I would settle, however, if the producers agree to spend two days collecting trash on the Santa Monica Freeway while whistling the Colonel Bogey March.

John Q. Tortellini v. Goodfellas—Another false-advertising suit.  The trailer shows a group of fun-loving guys engaged in the types of male-bonding activities typically seen at the average groom’s bachelor party.  Just a bunch of “Good Fellas” out on the town.  One of them is Joe Pesci.  I loved him as Cousin Vinny in his purple velour tuxedo telling judge Herman Munster about “two yoots,” and outsmarting that smarmy prosecutor with Marisa Tomei.  When I saw that he was in this “buddy movie,” I rushed to buy my ticket, expecting another warm-hearted comedy.  That delusion ended when he began dropping F-bombs by the score and routinely maimed, shot, or killed anyone who looked at him the wrong way.  Then I realize it’s a MAFIA movie, and boy, does Pesci have a short fuse!!  Not for me, sister.  I demand a refund and an apology to the entire Italian American community for this vicious ethnic slander!!  In the alternative, I demand that the film be pulled from distribution for being a Mafia film with a lead character named Henry Hill.  Whoever heard of a Mafioso named Hill?

The list of lawsuits that might have been could go on forever.  Indeed, Orson Welles is probably breathing a sigh of relief from his eternal repose, thankful that he lived in a simpler time where he was immune from a trademark suit by the famous Pasadena New Year’s parade and bowl game over the iconic last word uttered by Citizen Kane—“Rosebud.”