A Florida federal court recently rejected Warner Bros. Pictures’ (Warner Bros.) motion to dismiss the claims against it with regard to the movie War Dogs starring Jonah Hill and Bradley Cooper. The suit was brought by Incarcerated Entertainment, LLC (Plaintiff), the owner of the rights to the life story of former arms dealer, Efraim Diveroli.

The suit alleges that War Dogs falsely bills itself as a “true story” based on Diveroli’s life. Diveroli, who had no editorial input in the creation of the movie, alleges that such a contention is false advertising and that Warner Bros. profited off of the false impression it created. Specifically, Plaintiff identifies a number of allegedly false advertisements surrounding the film, including social media posts and promotional interviews with the director and cast. For example, the amended complaint notes that Jonah Hill stated in an interview that War Dogs is “one of the craziest movies I’ve ever been in – in a great way. And it’s all true.”

The judge rejected Warner Bros.’ motion to dismiss the amended complaint, noting that the motion failed to address whether the allegedly false statements, in context, created the false impression that War Dogs is in fact a true story. Further, the judge rejected Warner Bros.’ argument that the veracity of the story is non-actionable because it is protected by the First Amendment. Instead, the judge found that even though the movie is a protected work under the First Amendment, the allegedly false advertisements surrounding the film were promotional in nature and are thus subject to the Lanham Act’s prohibition against false advertising.

TIP: Although a creative work may be protected under the First Amendment, marketing and promotional material relating to a creative work will likely be deemed commercial speech subject to the Lanham Act’s prohibition against false advertising.