batrimony.pngDC’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.

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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.

17 COMMENTS

  1. The thing that has astounded me most about this controversy is that many persons apparently thought the wedding was really going to happen. Granted, I have 40+ years of comics reading experience and have seen PLENTY of stunts and fake-outs, but I never thought for one second that DC would go forward with a married Batman. I’ll still surprised they allowed Damien Wayne.

  2. Surely what they would be suing over would not be false advertising as such, but instead a breach of their terms of sale, ala the Brian Hibbs lawsuit from yoinks ago re: changing the contents without making it returnsble.

  3. @Sanityormadness: they could certainly try that, but as noted in the piece, content is qualitatively different from dates, artists, etc. — and there’s no pertinent precedent from that lawsuit; it was settled.

    A judge looking at the terms of the sale would likely look at usage of trade, course of dealing, etc. to determine exactly what it was to which the dealers agreed. As the Beat noted earlier, there’s a long history in comics of a promised event having a twist, and there’s an even longer history of covers and blurbs not matching the internal content.Would a judge dictate that blurbs and covers all have to be literally true from this time forward, or would the judge say that twists are customary? My money’s on the latter, in part because the literal truth diktat raises the serious First Amendment issue noted in the piece.

    Moreover, there’s the question of what exactly the promo promises. One could argue that it never states that either party will say “I do.” For instance, there will be “a comic book coupling” — and what is a comic book coupling but one with a twist when it comes to marital status? Similarly, the promo states that the nuptials “are sure to be offbeat,” and judging from the spoilers, that they are.

  4. The Beat piece I’d enter as evidence re promos: http://www.comicsbeat.com/the-batrimony-con-game-is-nothing-new/

    The Uniform Commercial Code on contractual interpretation: https://www.law.cornell.edu/ucc/1/1-303

    Charles v. City of Los Angeles: http://cdn.ca9.uscourts.gov/datastore/opinions/2012/10/15/10-57028.pdf

    And a general caveat re my analyses, especially when they’re not 15-20 pages long and precision is key, a la the Kirby case legal strategy articles — to keep things manageable and clear, I often condense concepts that could be broken out into multiple paragraphs. That’s why the article just summarizes the key issues in the Hibbs case and keeps with false advertising instead of breaking it out into multiple claims, including breach of contract. Trust me, you don’t want these to read like a brief!

  5. I don’t know why people are saying “it was never going to happen” – at one time I would never have thought the monthly Superman comic was going to feature Superman with a child, or even a married Superman in the main title, or a married Spider-Man, or Batman with a child. I certainly thought the wedding was going to happen, even if it was going to be reversed later. It’s all part of the feeling on the part of some creators that the characters need to change and evolve.

  6. Collectors obviously care. Batman’s wedding would have been one of the key issues in his entire publishing history. Now it is just another anniversary issue that leads into something else. By comparison it is meaningless. And thats why comparisons to other solicits being misleading don’t really work since they usually end up being wrong about some minor thing that isn’t that important in grand scheme of things.

    As for “it was never going to happen” comments, I love when they appear after something did not happen and people pretend like they knew it all along.

  7. I still find the whole controversy quite bizarre–like, the Superman wedding special is not such a thrillingly key collectible, and this would have been the same if the wedding had gone ahead.

    There’s a nasty bit of misogyny in some of the outrage as well, because the decision not to go ahead with the wedding is Selina’s, not Bruce’s. I’ve seen people say “oh but it would be so great to read about a Batmarriage disintegrating!” No. It’s better that she has the agency to walk away. And this is what King’s whole run is about: that you can’t wish your trauma away, that you can’t be completely healed or even move forward, you have to remain a little bit stuck with the things which break you the most, which may also be the things which drive you the most. Selina sees that; she more or less says it in her letter during this issue. The idea that Bruce doesn’t just get to decide to be someone who’s capable of happiness now, that he has to live with the shape his life has actually taken–that’s a lot more interesting, narratively and psychologically, than whatever wedding could have appeared on the page. King is very good at showing a Bruce who is entitled and volatile as well as brilliant and heroic. I like this story and am looking forward to another couple of years of it.

  8. Mat, your take on this situation is refreshing and seemingly accurate. Some of the comments about the wedding are representative of the worst of comic fandom.

  9. What rankles me about this is not the controversy itself and the disappointment it’s brought to fans. The ‘collectibility’ aspect? REALLY don’t have ANY sympathy towards that argument. No, what annoys me is the reaction to the new Catwoman book that’s a side effect of this.

    I’ve seen from multiple people the phrase ‘it’s dead in the water’ because of the outcome of this wedding. Um, people could just really like Catwoman, this could be the first Catwoman book that’s caught somebody’s eye (in my case), they could really like Joelle Jones’ art. It’s more than a little reductive and insulting to say, in essence, that the only reason people care about Selina is her relationship with Batman. Personally? Her relationship with him should not define her as a character.

  10. I can’t believe anyone over 15 is taking this “controversy” seriously. Fake marriages (like fake deaths) have been a typical comic-book gimmick for many decades.

  11. Most anger I see is from shop owners who got tons of orders canceled and returned because of what was pushed as the big event of the summer. I know that this sort of thing was never going to happen, but DC made every effort to convince fans it would. Tons of variants, preludes, midnight release parties. And a solicit that seems to leave no doubt that it was happening…

    “It’s the wedding you never thought you’d see! The Batrimony is real as Bruce Wayne and Selina Kyle are set to tie the knot in a can’t-miss, extra-length milestone issue that will reshape Gotham City. All their friends (and a few enemies?) will be party to a comic book coupling for the ages.

    Superstar scribe Tom King officiates the sure-to-be-offbeat nuptials, joined by an all-star lineup of guest classic Bat-artists doffing their hats to the lucky couple in a series of pre-wedding flashback scenes sure to set the romantic mood.”

    Then they heavily pushed the “reception playlist” on Spotify…for what reception???? Take into account that one thing that DC has pushed about Tom King’s run is how many new fans have jumped into comics because of the Bat-Cat stuff (fans with no prior knowledge of comic book weddings) and the controversy is straight up that DC took advantage of people.

    Most of the controversy isn’t the story, but how it was pushed to be something it wasn’t

  12. I have to agree with Jim that the real controversy has to do with the marketing of this story. While I myself will never understand the hype male comic book fans have for comic book weddings, I totally understand that they were sold something that didn’t come to fruition, and completely sympathize with the retailers stuck with cancelled orders. As much as I tend to love DC Comics (to a degree that is possibly unhealthy), this is one case where despite my disinterest in the story, DC’s marketing department made some VERY poor decisions with this story. Not Tom King, who just wrote the story, or any of the artists who worked on this.

  13. Lately, this site has been paying more attention to retailers (and their tantrums and bruised feelings) than to the actual readers. Unless The Beat is changing its name to “The Retailer Gazette,” maybe it should put more focus on readers — and on stories rather than marketing and hype.

    Anyone out there remember stories? Heidi used to review them, many years ago.

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