What would you, as a film producer do, if someone came to you and said “I saw something in your movie trailer, but I did not see it in the movie. Pay me 60k for my agony.”
It sounds absurd but that is exactly what happened in this Supreme Court case of Yash Raj Films Private Limited V. Afreen Fatima Zaidi & Anr.[i] The Court, however, clarified that promotional trailers do constitute enforceable agreements, and therefore the song shown in the trailer, but not included in the movie, would not be, either, deficiency of service, or an unfair trade practice.
Facts
The complainant decided to watch the movie “Fan” after listening to the song “Jabra Fan” in the trailer. However, to complainant’s disappointment, the song was not played in the movie. The resultant teasing from family members, caused mental agony to the complainant,[ii] and therefore the complainant filed a consumer complaint and claimed damages of Rs. 60,550.[iii]
The District Consumer Redressal Forum dismissed the complaint. This may seem like the end of the matter, but it had just begun. The State Commission allowed an appeal from this order and awarded compensation of Rs 15,000.[iv]
On appeal by YRF, the National Consumer Disputes Redressal Commission (NCDRC) upheld the order of the State Commission, observing that a consumer would feel deceived if a song shown in a trailer is not played in the film, thereby amounting to unfair trade practice, and also deficiency of service, because a song played in the trailer leads to an implied promise that it will be played in the film.
Judgement
The Supreme Court firstly clarified that promotional trailers are advertisements for films, and therefore, it is a commercial speech. Citing Tata Press v. Mahanagar Telephone,[v] the court clarified that an advertisement is protected under the fundamental right of freedom of speech under Article 19(1) of the Constitution. However, an advertisement that is deceptive, unfair, misleading or untruthful, is not protected under free speech, and may be prohibited by the State.
An advertisement is not merely spreading information, but also a means of creative and artistic expression (something we might all agree to: I think some ads are famous, not because of the brand, but the creativity of the ad itself). A song in a promotional trailer can be used to popularise or to create a buzz about a film, rather than to purely represent information about the contents of the film. It is possible that viewers can be interested to watch the film due to such song. The court however said that, “the kind of right or liability a promotional trailer creates would entirely depend on the civil and statutory legal regime.”
The legal regime invoked by the complainant was the Consumer Protection Act, 1986 (“Consumer Act”) and therefore the Court analysed the issues keeping this in mind.
Deficiency of service
As per section 2(1)(g) of the Consumer Act, deficiency is when there is a fault, imperfection, shortcoming or inadequacy in the quality, nature, and manner of performance that is required to be maintained either in terms of a law or in terms of a contract.[vi]
A person watching a movie would certainly be considered a consumer, the service being of entertainment. However, according to the Court, there was a fallacy in the argument of the complainant that a promotional trailer is an offer or a promise. A promotional trailer is not an offer or a promise, much less a contract. It was merely an encouragement for people to purchase tickets.
When a ticket is purchased to watch a movie, a contract is made only to allow the purchaser to watch the movie, on payment of certain consideration. It is not connected to the advertisement i.e., the promotional trailer. An advertisement generally is not an offer, but only an ‘invitation to offer’.[vii]
Therefore, as there was no contract that the song would be played in the movie, no case for deficiency of service was made out.
Unfair Trade Practice
The Court held that the promotional trailer in question did not fulfill the ingredients required to constitute unfair trade practice as defined under Section 2(1)(r)(1) of the Consumer Act. It did not fall under any instances of “unfair method or unfair and deceptive practice”, which pertained to unfair trade practice in the promotion of goods and services. Nor did it involve false statements meant to deceive viewers. The burden of proof was on the complainant, however, absence of substantial evidence from them further weakened their case.
The Court also brought light to an important distinction: judicial precedents in the realm of unfair trade practices did not pertain to transactions involving artistic services. The nature of these services required creative freedom and discretion in their presentation. Therefore, the criteria for evaluating such services must account for the creative element inherent in such transactions.
Therefore, as the ingredients of ‘unfair trade practice’ was not fulfilled, no case for unfair trade practice was made out.
For these reasons, the Supreme Court set aside the order of NCDRC.
Conclusion
There are various important clarifications made by the Supreme Court in this decision, one being that the judicial precedents for unfair trade practice did not pertain to transactions involving artistic services, which would necessarily involve freedom and discretion of the artist. Therefore, the standard for analysing such services and issues should be different from standard commercial transactions.
A significant aspect of cinematic storytelling involves adding songs to enrich the viewer’s experience. However, practical constraints sometimes necessitate removing these songs, like adhering to censorship guidelines or for shortening the film’s duration, because other scenes vital to the plot cannot be removed.
The dismissal of the case was expected, because if such a claim was upheld—every viewer could potentially demand compensation, setting a precarious precedent within the entertainment industry. In essence, the Supreme Court’s decision not only upholds the nuanced nature of artistic expression but also safeguards against outcomes that could adversely affect the entertainment industry.
End Notes:
[i] Civil Appeal No. 4422/2024 (Arising Out Of Slp (C) No. 14475/2021
[ii] Ibid, Para 11
[iii] Ibid, Para 2
[iv] Ibid, Para 3
[v] Tata Press Ltd v. Mahanagar Telephone Nigam Limited, (1995) 5 SCC 139, paras 17-18 and
25.
[vi] Arulmighu Dhandayudhapaniswamy Thirukoil, Palani, Tamil Nadu v. Deptt. of Post Offices, (2011) 13 SCC 220, para 18.
[vii] Halsbury’s Laws of England, vol 22 (5th edn, LexisNexis 2012), para 240
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