DC’s advance solications for Batman 50 claimed that “the Batrimony is real,” but the case for a false advertising lawsuit is not as strong as some might think.
After The New York Times reported that Catwoman would be a no-show to the the highly publicized Bat-wedding, a number of comic shop owners cried foul — not only did the newspaper spoil the story before stores had a chance to sell the books in which they’d made a considerable financial investment, but the news that the book would not in fact contain the promised “comic book coupling for the ages” made many readers and retailers alike feel that they’d been sold a bill of goods.
Not suprisingly, there has been talk of lawsuits claiming that DC tricked retailers into over-ordering based on false advertising. From state laws on fraud and consumer protection to the Federal Trade Commission’s mandate to stop false or misleading advertising, the legal basis for such a complaint would seem to be clear; after all, not only did the solicitation text contain direct assurances that the wedding would indeed take place, but the cover (and countless variants) clearly depicts a wedding scene. Retailers purchased copies in the expectation that readers and investors would buy a higher-than-usual number of copies of what was certain to be a key issue; sure, the wedding might be undone at some point in the future, but the historic nuptials would at least take place.
However open-and-shut the case might seem, there is a significant obstacle: courts have repeatedly found that when ads are promoting material protected by the First Amendment, the lower degree of protection afforded commercial speech does not apply. For example, the 9th Circuit U.S. Court of Appeals, whose jurisdiction includes DC HQ, has notes in Charles v. Los Angeles that an advertisement “adjunct” or “incidental” incidental to a book can enjoy the same degree of First Amendment protection as the book itself even in a false advertising action.
A lawsuit targeting promotion of the content of a book is different from, say, a false advertising claim based on a promised date of delivery, the involvement of specific artists, or the quality of the printing or paper — the overriding policy goal with respect to content is to keep free expression from being chilled by the threat of lawsuits, including both free expression through creative work and authors’ freedom to talk about their books. There may be instances where the marketing rhetoric promises more than the book the delivers, but as the New York precedent discussed at length in Charles concludes, marketing puffery for protected speech will be tolerated for the sake of the higher ideal.
While, as the 9th Circuit observes, there is at least one California state case concluding that a book cover containing a false claim about a book is commercial speech susceptible to a false advertising action, in a constitutional showdown between 9th Circuit precedent and an earlier lower state court the 9th Circuit’s interpretation will trump — and given the legal consensus across federal appellate courts, the Supreme Court is not likely to intervene.
Could the law change? Sure, anything’s possible, especially in light of how comics have become an intriguing hybrid of creative speech and commodity investment, and if a lawsuit were to be filed that would no doubt be a key point. But even if courts adhere to existing precedent, the fact that something’s legal doesn’t mean everyone will agree it’s fair. If Batman 50 does not hold a matrimonial twist beyond the Times’ spoilers, it wouldn’t be at all out of order for DC to make copies returnable as a token of good faith.