failure to caption music/songs doesn’t make “close captioned” label misleading

Anthony v. Buena Vista Home Entertainment Inc., 2016 WL
6836950, No. 2:15–cv–09593 (C.D. Cal. Sept. 28, 2016)
Plaintiffs, who are deaf or hard of hearing, alleged that
defendants sold (1) DVDs enclosed in packaging with language advertising the
DVDs as subtitled, (2) movies advertised as captioned, and (3) movies or TV
shows advertised as subtitled via online streaming services. However, the
movies and TV shows were in fact not fully subtitled, specifically lacking
subtitles for music and song lyrics, which are often used to explain the
premise or theme of a movie or TV show, and can sometimes be crucial to
developing a plot (e.g., musicals). They brought the usual California claims as
well as a claim for violation of California’s Unrah Civil Rights Act.  The court found that plaintiffs failed to
allege that reasonable consumers would be deceived; “whether such content
should include subtitled song lyrics is quite distinct from whether consumers
expect it to.”  Plaintiffs might have
hoped that industry practice would change, but plaintiffs even alelged that
“the practice of not subtitling song/music lyrics is frustratingly widespread,”
and they each purchased or rented “numerous DVDs” in which the content
“including music lyrics, was not subtitled or captioned.”
Plaintiffs argued that they were a particularly susceptible
audience, and therefore the ads had to be measured by the impact they’d have on
members of that audience instead of by the effect on reasonable consumers. But
such a standard applies “to audiences who are known to be particularly
susceptible to advertising, such as small children, not vulnerable audiences in
general.” Plaintiffs didn’t explain why they would be more susceptible to
persuasive advertising than any other reasonable consumers.
For the same reasons, plaintiffs failed to adequately allege
reliance.  Also, plaintiffs alleged that they
didn’t have any choices about whom to buy from, since only defendants produced
captioned versions of their movies or shows. 
“In effect, the Plaintiffs are conceding that they would buy or rent the
products even without full captioning and subtitling, as there are no better alternatives
available to them.”
Also, and worryingly in a broader sense, the court found
that plaintiffs’ warranty claims failed because they didn’t allege either a “sale”
or a “consumer good” as required by the Beverly–Song Act. The claims involved
the video content of the DVDs, streaming services, or live movies, and the
court concluded that it was this content that would have to be “sold” to be
subjected to the act. But title to the content remained in the copyright owner;
“[t]he consumer may purchase title to the physical DVD, but only purchases a
license to view the expressive content.” 
Thus, there was a sale as to the physical DVD, but not as to the DVD
content. The same analysis meant there was no “consumer good” at issue.
The Unruh Act claims failed for want of alleged intentional
The court also found that California’s anti-SLAPP law
applied, given that captioning of videos is protected speech.  Plaintiffs argued that they were challenging
the advertising, not the absence of captions as such. But the “principal
thrust” of the warranty and Unruh Act claims was “clearly the captions and
subtitles themselves, not the labeling on the box,” since the warranty claims
were based on allegations that the movies and shows didn’t meet the particular
needs of the deaf and hard of hearing community because they weren’t fully
subtitled. “Such claims stem from the captions themselves, as changing the
labeling would not ensure that the movies and shows met the needs of the
Plaintiffs as stated in the Complaint.”  Nor
would a labelling change provide plaintiffs with the relief they sought under
the Unruh Act.
Although the argument that the false advertising claims
involved purely commercial speech rather than protected content carried more
weight, it still failed, because the ads were acts “in furtherance of the
Defendants’ right of free speech and are in connection with a public issue.”  The commercial speech exemption to the
anti-SLAPP law doesn’t apply to actions against “any person or entity based
upon the creation, dissemination, exhibition, advertisement, or other similar
promotion of any dramatic, literary, musical, political, or artistic work,
including, but not limited to, a motion picture or television program….”  

Because plaintiffs’ claims were legally insufficient and
unsubstantiated, the court granted defendants’ motion to strike under the
anti-SLAPP law.

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