Recently I came across this innocuous piece of news that Yash Raj Films (“YRF”) has been fined Rs. 10,000 and Rs 5,000 as litigation costs by the National Consumer Disputes Redressal Commission (“NCDRC”), for “deficiency” and “unfair trade practice” under the Consumer Protection Act, 1986 (“CPA 1986”).
The decision of the NCDRC was based on a complaint by a consumer against YRF for promoting the movie ‘Fan’ starring Shahrukh Khan with the song ‘Jabra Fan’ in its promotional campaign, which song then never appeared in the actual screening of the movie ‘Fan’. The basis of the complaint was that as the promos for the movie included the song, and on the basis of the promos the complainant and her family decided to go watch the movie, they felt cheated when the song did not appear within the movie itself.
District Forum & SCDRC
The complaint was dismissed by the District Forum (which is the court of first instance for consumer disputes with a pecuniary value below Rs 20,00,000 as per Section 11 of the CPA 1986). In an appeal against the order of the District Forum, the State Consumer Disputes Redressal Commission (“SCDRC”) reversed the dismissal by the District Forum and fined YRF Rs. 10,000/- and awarded Rs 5,000/- as costs of litigation.
The complainant moved an appeal before the NCDRC and the latter delivered a decision upholding the order of the SCDRC. Before the SCDRC and the NCDRC, YRF argued firstly that the complainant was not a ‘consumer’ as defined under the CPA 1986. This argument was rejected by the NCDRC on the grounds that while the money paid by the complainant was not paid directly to the producer; the producer, exhibitor and distributor all share the final revenue from ticket sales and therefore, the NCDRC held, rightly if I may add, that the complainant was in law and fact a consumer of YRF when they purchased the ticket to watch the movie.
The NCDRC thereafter went on to delve into the interpretation of “deficiency” and “unfair trade practice” under the CPA 1986.
Unfair Trade Practice and Deficiency – The Court’s Reasoning
On the issue of “unfair trade practice”, the NCDRC observed that “When the producer of a movie shows the promos of the said movie on TV Channels, etc. and such promos include a song, any person watching the promo would be justified in believing that the movie would contain the song shown in the said promos, unless the promo itself contains a disclaimer that the song will not be a part of the movie. If a person likes the song shown in the promo and based upon such liking decides to visit a cinema hall for watching the said movie for a consideration, he is bound to feel deceived, disappointed and dejected if the song shown in the promo is not found in the film.” On this basis the NCDRC was of the opinion that the practice of using a song on TV channels to promote a movie and then not showing the song in the actual movie constitutes an unfair trade practice.
On the issue of “deficiency” the NCDRC observed that “The obvious purpose behind such an unfair trade practice is to draw the potential viewers to the cinema hall by luring them with the song which forms part of the promo and thereby making gain at the cost of the viewer if the song does not form part of the movie for which consideration is paid by the viewer.” On the basis of this, the NCRDC came to the conclusion that exclusion of the song amounts to ‘deficiency’ under Section 2 (1) (g) of the CPA 1986, as the song is “impliedly promised, but later omitted while exhibiting the movie”.
YRF resisted this position by asserting that the producers and the actor in the movie had declared publicly that the song is part of the promo and would not be a part of the movie. The NCDRC did not give any weight to this contention and held that “even if the disclosure was made, it cannot be assumed that a person who watches the promo containing the song would also happen to see the interview given by the actor/producer of the movie.”
The NCDRC thereafter went on to further observe and explain their rationale by stating that “In fact, I fail to understand the logic behind including the song in the promo but excluding it while exhibiting the movie, unless the intention of the producer is to deceive the viewer by making him believe that the song would form part of the movie while knowing it very well that the said song would not be a
part of the movie when it is exhibited in the cinema halls.”
Lack of understanding of the film industry
The NCDRC’s rationale in arriving at a finding of conduct amounting to ‘unfair trade practice’ and ‘deficiency’ belies a certain lack of understanding of how movies are made, promoted and consumed in this country. Now it must be stated that I do not have any knowledge of the actual arguments made by the counsel of YRF in this consumer dispute but, the manner of promotion of this movie and the content of the actual teasers and trailers of this movie need a further analysis before any objective determination can be made with respect to the intent of the producers to ‘deceive’ the viewer into assuming the song would form part of the movie.
Movie trailers and promos are consumed both on television and the Internet. Songs are not the only part of the promotion of a movie; teasers, trailers, interviews, fan engagements, appearing on game shows and reality shows on television; this entire universe of activities is what starring actors, directors and producers of movies engage in, while promoting their movies. The movie ‘Fan’ was released on April 15, 2016. The promotion, however, began much earlier with Teaser 1 which was released on July 09, 2015, Teaser 2 on November 02, 2015 and the music release on February 16, 2016, which included a music video of the song ‘Jabra Fan’ and finally a Trailer release on February 29, 2016. It would be pertinent to note that neither Teaser 1, Teaser 2 nor the Trailer have any mention of the song ‘Jabra’ Fan and they are a direct representation of the end product being offered, which is the movie.
It must be understood that the music release along with a music video is a marketing tool used by production houses (one of many) to get potential consumers interested in the final product – the movie. The music video and music release is intended to get a wide audience interested in the movie, and if a particular consumer wishes to know more about the movie, 2 Teasers and a full trailer are available and being screened on television and on the Internet on YouTube, which will give the consumer an idea of what the movie is about, with absolutely no mention of or reference to the particular song.
A further argument can be made that a music video, even if used to promote a movie heavily, cannot be construed to be an actual promotion of the movie without taking into consideration the fact of existence of the teasers and the trailer. The offence of ‘unfair trade practice’ or ‘deficiency’ would have only existed if along with this music video, the actual teasers and trailer contained this song. In such a situation it would appear that in all promotional activities this song existed and a reasonable person could assume that the movie would contain this song.
However, taking into account the fact that in no actual teaser or trailer of the movie does the song find any mention, coupled with the fact that the teaser or trailer is the actual and official representation or preview into the final product or service, the song cannot be conflated to be given such importance that an intent of deceit can be imputed to the producers, when the other marketing efforts from the production house for the same movie do not factually bear out the same conclusion. The promotion of the movie started in July 2015, the song was released in February 2016 and the movie released in April 2016. This movie was promoted without the song for a much long period, than it was promoted with the song.
I do not believe the rationale of the NCDRC passes a ‘reasonable man’s test’ in today’s context, just because a ‘song’ is associated with the promotion of a movie. When no trailer or teaser actually shows particular song and instead such teasers and trailer show the tone and tenor of the movie to be in fact in complete opposition to that song, it is correct to assume that the potential ‘reasonable’ consumer will assume that the song will not necessarily be a part of the movie.
Incorrect consumer assumptions
Another observation of the NCDRC which troubled me is the observation that “If a person likes the song shown in the promo and based upon such liking decides to visit a cinema hall for watching the said movie for a consideration, he is bound to feel deceived, disappointed and dejected if the song shown in the promo is not found in the film.” This observation stems from an incorrect understanding of how movies are consumed; even assuming you refer back to the release date of this movie in April 2016.
I do not consider it a correct assumption that a song is the entire consideration paid for a movie. These songs are available for free for viewing on the Internet through YouTube and played heavily on radio (especially during promotion) where consumers can listen for free. If the song was truly the only consideration, no one would watch a movie as the song is in audio and video available to most people at zero or extremely low cost. The consideration for a movie has to be the movie in its entirety, and a solitary song even if promoted as a part of the movie, only forms part of that. Its entire promotion including its teasers, trailers and songs should be taken into account when coming to conclusion of intent and whether the same amounts to ‘unfair trade practice’ and ‘deficiency’. It may be that perhaps up till the late 2000’s when internet and content availability was not as ubiquitous in India as it is today or was across the last decade, the logic that a song from a movie would be the entire reason why someone would go to a cinema hall to watch a movie does not hold in today’s context at all and is at best an archaic logic to apply to consumer consumption.
Further, another factor which was not within the discussions of this decision and I wouldn’t know if it was argued, was how difficult it is to sell movies such as ‘Fan’ in the Indian market. India’s crowded movie market place does not have close to enough number of screens as required for the population it serves, and it is a tough place to market your movie. These types of movies don’t seem to find a large audience and therefore producers will use the presence of actors such as Shahrukh Khan to reach a wider audience through music.
To say that the use of this music to promote the movie without taking into account other promotional activities, when finally not used in the actual film amounts to an unfair trade practice is not legally, commercially or logically sound. Music videos can be created separately without the help of the actual director of the feature film. They can be stand-alone pieces if so required or can be integrated with the film if it does not affect the story line. This is all a part of the artistic integrity of a director who wants to make the best film possible. Directors in India have long been told by producers that they have to put in a song into their movies, so that they can market the movie or the movie won’t sell. Some of our best movies of the past decade don’t have a traditional song piece in the movie, but use their music as a background to a development in the plot-line of the film. This decision would limit a director’s creative ability to continue making movies without compromising on the marketing of the movie by using a song, but only outside the movie.
The decision on whether this should be appealed is something which YRF would have to consider, if they believe this decision will impact the manner in which they market their movies, though I would be extremely uncomfortable with such a precedent being attached to the marketing of a movie. The fine in itself is not high therefore the decision to appeal or not would be a strategic one, as YRF will have to prefer an appeal to the Supreme Court within 30 days of the order under Section 23 of the CPA 1986.
However, with respect to the current order, production studios would be well served in using their music videos as beginning credits or end-credit accompaniments (as many are doing now) or if the song may not be appearing in the movie, display adequate disclaimers under the song when it is being played on TV or on YouTube, that the song is for promotional purposes and may or may not appear in the movie. This should at least solve the problem of legal liability being attached due to the same being considered an unfair trade practice or under the grounds of deficiency.
Disclaimer: This post has been prepared for informational purposes only. The information/or observations contained in this post does not constitute legal advice and should not be acted upon in any specific situation without seeking proper legal advice from a practicing attorney.
 Section 2(1)(r), CPA 1986