In an interesting decision in the case of Yash Raj Films Private Limited v Afreen Fatima Zaidi & Anr [SLP (C ) 14475/2021], the Hon’ble Supreme Court of India ruled that the content involved in the promotional trailers (of films) is unilateral and cannot be construed to be an offer from the filmmaker to the public. Ttherefore, it cannot be considered to be an enforceable agreement.
In this case, the respondent had filed a consumer complaint against the appellant on the grounds that the song extensively promoted and marketed by the appellant was not a part of the final film –“Fan”. Disappointed by this “misleading” promotion, the respondent claimed damages of INR 60,550. The District Consumer Forum dismissed her complaint on the ground that there was no relationship between the parties and the complaint did not have merit.
Subsequently, the respondent appealed before the State Commission, which held that since the appellant is a service provider and “entertainment” is a service, the appellant had indeed engaged in unfair trade practice by circulating the song widely but not including it in the final movie. As a result, the respondent was given around INR 15,000 as compensation.
On appeal, the National Consumer Disputes Redressal Commission (“NCDRC”) upheld the lower court’s order. Finally, a Special Leave Petition was filed before the Hon’ble Supreme Court. The apex court examined the issue whether the non-inclusion of the promotional song in the final film would amount to “deficiency of service” under the Consumer Protection Act, 1986 (“Act”). The apex court ruled that a promotional trailer/ material of the film is not an offer or promise. Therefore, the non-inclusion of the promotional song in the final movie will not amount to deficiency of service under the Act.
While assessing the issue of a possibility of unfair trade practice by the appellant, the apex court observed that for services involving art, there is involvement of freedom and discretion by the service provider. Therefore, the creative elements related aspect should also be considered. In light of this, the court concluded that the appellant did not engage in any unfair trade practice and set aside the order of the NCDRC.
This is a landmark decision for the media industry because it is a common practice that certain dialogues, songs or content pertaining to a movie or show to be created specifically for promotional purposes, and the producers cannot be made to necessarily be made to include the same in the final product. Furthermore, as the apex court rightly noted, the entertainment industry banks on creativity and freedom, therefore, the creators of the film/ series should be allowed the freedom to promote the work as they deem appropriate for gaining traction.