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'War Dogs' Lawsuit Targets True-story Marketing Claim

By Robert Marich
   May 12, 2017-Warner Bros. is being sued by a convicted arms dealer who claims the distributor’s marketing for its War Dogs falsely portrays the comedy-drama as based on his “true story,." It’s rare that marketing messaging claims get hauled into court.
   Warners premiered War Dogs in August 2016 and the R-rated movie grossed a mediocre $43 million domestically. Jonah Hill and Miles Teller star.
   Former weapons dealer Efraim Diveroli, who originated his own unsold script on his exploits, is pursuing his civil lawsuit in a federal court in Florida alleging that the movie's advertising is deceptive
The claim in marketing messaging that War Dogs is true-story based prompts lawsuit by ex-arms dealer

and misleading. In a colorful touch, Diveroli's legal action is from his Incarcerated Entertainment LLC.
   The Warner movie is based on writings of Rolling Stones magazine journalist Guy Lawson, who interviewed Diveroli and is involved in the film itself. So there's an obvious connection to Diveroli’s exploits.
   “The Amended Complaint identifies a number of allegedly false advertisements, including statements in movie trailers, social media posts, and promotional interviews with War Dogs’ director, Todd Phillips; screenwriter Stephen Chin; and stars Jonah Hill, Miles Teller, and Bradley Cooper,” wrote U.S. federal district judge Mary Scriven in a finding that allows the lawsuit to proceed.
   “Warner knew that representing the story as ‘true’ would induce consumers to see War Dogs,” adds Scriven. Although movies are works of artistic expression and must be protected, “they are also sold in the commercial marketplace like other more utilitarian products, making the danger of consumer deception a legitimate concern that warrants some government regulation.”
   In early responses to the litigation, Warners maintains its creative messaging in marketing is protected under the First Amendment for free speech, notes a Hollywood Reporter article by Ashley Cullins. Warner says marketing campaign elements like interviews/commentaries by creative talent involved in the film have protections as fair comment and criticism.
   As for my take, it’s accepted law that no person can claim their life story to the exclusion of third parties piecing together independent narrations of the same story. For example, imagine if a public figure like the president of the United States asserted only he/she can create works about him/herself. No doubt anyone can create such narrations.
   Probably for this reason, Diveroli pursues a tangential claim that the Warners movie misled moviegoers with true-story in marketing. It’s odd because the most “injured” parties in that case are moviegoers who bought tickets. Diveroli’s right-of-publicity gets dinged too, though his injury is minor since I don’t see how he is impeded in pursuing his own story-telling.
   In one of her rulings, judge Scriven acknowledges Warner has a right to make the movie, but says that the protections afforded to “artistic expression” are separate from marketing messaging, or “commercial speech.” So plaintiff Diveroli has succeeded in focusingi his case on the allegiation of “false advertising,” and thus sidestepping free-speech rights underpinning the movie itself.
   A 19-page ruling by judge Scriven, which is dense reading and peppered with citations of case law, is embedded in the Hollywood Reporter story link below.
   Stay tuned!
For full text, click links below; this website’s text is searchable via seachboxes on upper right of webpages:
http://www.hollywoodreporter.com/thr-esq/warner-bros-cant-evade-war-dogs-lawsuit-1002852
http://marketingmovies.net/chapters/chapter-1-creative-strategy-for-marketing/