Hollywood Studios Beat Lawsuit Over Non-Captioning of Song Lyrics in Movies and Television

The putative class action came on behalf of those with hearing disabilities alleging misrepresentations and violations of civil rights.
Weinstein Co.

Disney, Warner Bros., Universal, Paramount, Sony and Buena Vista Home Entertainment have beaten a lawsuit that alleged that Hollywood has violated various laws by refusing to provide more captioning or subtitling of song lyrics in films and television shows.

The putative class action was brought in Oct. 2015 by members of the Alexander Graham Bell Association for the Deaf and Hard of Hearing. The lawsuit in California claimed that studios were falsely advertising their products and violating the civil rights of those with hearing disabilities, estimated to be 10 percent of the population.

"While the dialogue of some movies or shows are indeed fully subtitled, the practice of not subtitling song/music lyrics is frustratingly widespread," stated the complaint. "Movies or shows that do not include the subtitled song/music lyrics withhold the full enjoyment of the movie or show from deaf or hard of hearing consumers. If parts of the movie or show are not captioned or subtitled, then deaf and hard of hearing consumers should be told as such before making a decision to rent or purchase the DVD, theater ticket or streaming."

On Wednesday, U.S. District Court Judge Stephen Wilson granted motions to dismiss and strike the lawsuit.

Studios might advertise their works as captioned, but Wilson says the question of whether song lyrics should be captioned is a distinct question from whether consumers expected it to be. On a misrepresentation claim, the judge writes that plaintiffs' "fall far short of demonstrating that reasonable consumers would actually be deceived as to the amount of subtitled content provided, as there are no representations whatsoever that all song lyrics would be captioned, or even that the content would be 'fully' captioned.'"

Wilson also finds that the contention there's been a breach of implied warranties not applicable here because plaintiffs haven't properly alleged that video content qualifies as a "consumer good" for purposes of the Beverly-Song Act.

As far the civil rights claims, specifically California's Unuh Act guaranteeing equal access for people with disabilities, Wilson concludes that plaintiffs have failed to allege intentional discrimination as required. He nods to a similar case over CNN's non-captioning that resulted in a ruling in favor of the cable news network at the 9th Circuit Court of Appeals. 

"The Plaintiffs' allegations, even taken as true, describe a neutral policy that applies to all consumers of the Defendants' movies and shows, and that the Plaitniffs admittedly bear the brunt of the policy does not convert the neutral policy into intentional discrimination," writes Wilson.

The judge has also deemed the complaint to be a SLAPP ("Strategic Lawsuit Against Public Participation"), meaning an affront to the studios' First Amendment activity in connection with a public issue. As such, the case is not only dismissed, but the plaintiffs face a strong possibility of paying the defendants' legal costs.

"The Court's conclusion that captioning qualifies as protected speech is supported by the characterization of the role of captioning and subtitling provided by both the Plaintiffs and Defendants," writes the judge. "From the description of both parties, it seems clear to the Court that captions, and specifically the decision regarding what content to caption, is a component of the moviemaking process, as the Studios must decide what level of captioning would provide the best experience for consumers using the caption and subtitle features."

Here's the full opinion.

The defendants were represented by Glenn Pomerantz and others at Munger Tolles & Olson.

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