"Professional Lawyers. Do Not Attempt."

Tuesday, April 1, 2008 - 01:00
Christopher Poindexter

We are all familiar with the often used disclaimers "Professional driver. Closed course. Do not attempt." or "Don't try this at home" to the point where they have become pop culture clichés. These disclaimers and others like them frequently appear in advertisements as a way of discouraging viewers from imitating the behavior shown, and are thought necessary in order to help reduce the potential risk of a claim from those who are injured as a result of mimicking the potentially dangerous or violent activity depicted. As attorneys called upon to advise our advertising agency clients in these matters, we are frequently asked, "Do these disclaimers help?" "What is the risk associated with depicting potentially dangerous behavior in advertising?" and "How can that risk be minimized?"

Although the United States Supreme Court has not issued a ruling on this topic, there are a long line of cases in which plaintiff's have sought to impose civil liability on creative content producers when viewers imitate behavior depicted in various forms of media.Consider three leading cases. In Herceg v. Hustler Magazine, Inc .,1parents of an adolescent brought a claim against Hustler magazine after their son accidentally hung himself while attempting the act of autoerotic asphyxia after reading about it in the publisher's publication. In Walt Disney Productions, Inc. v. Shannon ,2a child plaintiff brought a tort claim against the producers and broadcasters of the Mickey Mouse Club because the child was partially blinded when he attempted to create certain sound effects by placing a BB pellet in an inflated balloon, as was demonstrated on the television show. Finally, in DeFilippo v. National Broadcasting Co., Inc., 3parents brought a claim against the Tonight Show after their son accidentally hanged himself and died while attempting to recreate a stunt that was performed on the show in which a stunt man "hanged" the host Johnny Carson.

Fortunately for content producers, attempts to impose liability on media based on imitative behavior have generally failed, as courts have almost always found that the First Amendment concerns regarding Freedom of Speech outweighed the harm of viewers attempting to imitate dangerous behavior. In each of the three cases mentioned above, the respective courts found that the First Amendment barred recovery by the plaintiffs. As the Georgia Supreme Court held in Walt Disney Productions, Inc. v. Shannon when it found that the suit was barred by the First Amendment, "to hold otherwise would, as the saying goes, open the Pandora's box; and it would, in our opinion, have a seriously chilling effect on the flow of protected speech through society's mediums of communication."

While that is good news for motion pictures, television programs and other media fully protected by the First Amendment, it is well settled that commercial speech, including advertising, is generally not afforded the same rigorous protection under the First Amendment. However, even in cases involving commercial speech, courts have found advertisers not to liable when viewers harm themselves mimicking the dangerous activity seen in commercials based on grounds other than the First Amendment. Sakon v. Pepsico, Inc .4involved a tort claim by the parents of a 14-year-old who broke his neck when he jumped off a cliff on his bicycle imitating a stunt he had seen in a Mountain Dew soft drink commercial. The Florida Supreme Court ruled that the plaintiff had no cause of action for negligence because the defendant had no duty to warn nor was there a breach of any duty owing by the defendant.

Sakon , together with the other decisions discussed above, might lead one to the conclusion that there is little risk that advertisers would be held liable for injury suffered by viewers attempting to imitate behavior featured in a commercial. That may be the case if it weren't for Weirum v. RKO General, Inc .,5a case often cited by plaintiffs seeking to bring imitative behavior claims. In Weirum, the defendant radio station sponsored a promotion contest in which a DJ drove around to different locations in Los Angeles and offered a prize to the first listener to find him at each location in the city. The claim arose when two teenage listeners, while speeding to a location to win the contest, caused a car accident in which a man was killed. The California Supreme Court affirmed the trial court's ruling in favor of the plaintiff. The court found that although there were no free speech issues ("The First Amendment does not sanction the infliction of physical injury merely because achieved by word, rather than act"), the contest did create an unreasonable risk of harm to the motoring public, including the victim, by encouraging high-speed automobile driving in a metropolitan area, and that the risk was foreseeable by the radio station.

Though the Weirum decision is often cited, it actually offers very little guidance in determining the outcome of an imitative behavior case, because the court considered foreseeability of the risk as a primary consideration in establishing the element of duty. As the sixth circuit noted in James v. Meow Media, Inc ., a case involving media liability for a Columbine-like school shooting in Oklahoma, "foreseeability is an often invoked, but not terribly well defined, concept in the common law of tort."6 Since whether a risk is foreseeable is a question of fact, Weirum does not give us a clear standard for gauging how foreseeable an actually unforeseen harm is going forward. The Weirum court upheld the lower court decision deferring to the jury finding that it was foreseeable that defendant's youthful listeners, finding the prize had eluded them at one location, would race to arrive first at the next site and in their haste would disregard the demands of highway safety.However, it is not hard to imagine a jury reaching a different conclusion on the same or a similar set of facts. Moreover, is the harm in Weirum any more foreseeable than harm that a viewer would mimic a stunt seen in a soft drink commercial or on a late night talk show?

Though the foreseeability of the harm in Weirum may not be what sets that decision apart from the other cases discussed, Weirum is distinguishable in a fairly obvious way that may be instructive. Specifically, Weirum does not involve imitative behavior. Rather, the "reckless conduct" allegedly caused by the radio station's broadcast was not the result of listeners imitating certain behavior but, because the defendant's broadcast stimulated and encouraged "reckless conduct." Read in this light, Weirum appears to be less of an outlier and is consistent with many other cases where sponsors of events or promotions are held liable for the conduct of its participants.7The causation link between radio station's broadcast and its listeners behavior is more direct in Weirum than in cases in which viewers mimicked behavior seen in television programs or commercials.

It may be tempting to view Weirum as a singular case that is only applicable to its unique set of facts. The court even stated in its opinion that the promotional event "bears little resemblance to daily commercial activities." However, over 30 years later, the decision may be timely and relevant as promotions become more elaborate and interact as advertiser's compete for people's attention in a more connected interactive world, especially as the line between advertising content, promotions, and user-generated content blurs. For example, more and more promotions now involve advertisers soliciting consumers to submit pictures or video clips of themselves doing certain activities which will then be featured in advertisements or on the Internet, and which are often featured in promotions where the best submission receives a prize. Recent examples of this user-generated content phenomenon include several commercials featured in this year's and last year's Super Bowl. In light of Weirum , these kinds of promotions could possibly bear more risk than a typical passive commercial if the promotion encourages consumers to partake in any potentially dangerous activity. By way of illustration, it may be a low risk for a car company to encourage drivers to submit video clips of themselves telling why they love their car, or to show a professional stunt driver taking a car through its full range of driving capabilities, but it would not be advisable to encourage drivers to submit videos of themselves driving their favorite and most exciting off-road route.

Given the foregoing, reducing the risk of a claim of injury due to imitative behavior can be easy. Since courts have been unwilling to rule that depicting dangerous activity in itself causes viewers to perform dangerous activity, but have found liability when and advertiser actively encourages listeners or viewers to partake in potentially dangerous or reckless behavior, an advertiser can show "aggressive" footage of driving, sports and other activities, performed by trained athletes, so long as they do not encourage others to participate.

Another way for advertisers to lower their risk is to actively warn of the risks involved in an activity depicted or discussed and discourage unsafe behavior. There seems to be at least some value in warning consumers to "not try this at home." In Herceg v. Hustler Magazine, Inc. and DeFilippo v. National Broadcasting Co., Inc, both the Fifth Circuit Court of Appeals and the Rhode Island Supreme Court, both noted that readers and viewers were warned to not attempt the depicted activities. These warnings were not dispositive regarding liability, but they were factors considered by the courts. Perhaps the outcome in Weirum would have been different if the radio station advised listeners to drive safely and warned that any participant who drove recklessly would be disqualified. While disclaimers, therefore, may not be the silver bullet, they certainly do no hurt, and so it is still a good idea to include them.

Finally, it is worth noting that even if the outcomes are not all the same, there is a common thread in all of the cases discussed and many of the other imitative behavior cases. That is, almost all of the cases involve young people, whether as the target audience or the alleged victims of the harm. This should encourage advertisers at the very least to give extra consideration to advertising and promotions that encourage certain activity among young people. In addition, there is no way to prevent a claim from being made. Once a complaint is filed and legal fees are incurred, a certain amount of damage has already been done. All advertisers and marketers should seriously consider the potential impact a claim can have, even if defensible, before embarking on a campaign that involves the depiction of potentially dangerous activities.

1Herceg v. Hustler Magazine, Inc., 814 F.2d 1017 (5th Cir. 1987)

2Walt Disney Productions, Inc. v. Shannon, 247 Ga. 402, 276 S.E.2d 580 (1981)

3DeFilippo v. National Broadcasting Co., Inc., 446 A.2d 1036 (R.I. 1982)

4Sakon v. PepsiCo, Inc., 553 So. 2d 163, 166 (Fla. 1989)

5Weirum v. RKO General, Inc., 15 Cal. 3d 40 (Cal. 1975)

6James v. Meow Media, Inc., 300 F.3d 683, 690 (6th Cir. 2002)

7See F.W. Woolworth v. Kirby, 293 Ala. 248, 302 So. 2d 67 (Ala. 1974), Shafer v. Keeley Ice Cream Co., 65 Utah 46, 234 P. 300 (Utah 1925), Cummings v. General Motors Corp., 146 Conn. 443, 151 A.2d 884 (Conn. 1959), Macon Telegraph Pub. Co. v. Graden, 79 Ga. App. 230, 53 S.E.2d 371 (Ga. App. 1949) and Michel v. O'Connor, 26 Ill. App. 2d 255, 167 N.E.2d 694 (Ill. App. 1960), which all involve sponsors who were responsible for the organization or format of sponsored events.

Joseph Lewczak is a Partner in the Advertising, Marketing and Promotions Group. Christopher Poindexter is an Associate in the Advertising, Marketing and Promotions Group as well as the Entertainment, Media and Publishing, Intellectual Property and New Media Groups.

Please email the authors at jlewczak@dglaw.com or cpoindexter@dglaw.com with questions about this article.