What are the legal issues when using copyrighted images to advertise a product that doesn't contain them?

Question

I was on YouTube a couple of days ago watching a video that looked at mobile game advertisements and whether or not they were reflective of the product.

To give an example, one game used online ads of supposed game footage with some of the characters being creatures from the Pokémon franchise. However, the actual game doesn't contain these characters at all.

On the one hand, I wondered if while the ad could likely be removed on copyright grounds, would the game itself be shielded by not actually including these characters? On the other hand, is advertising a product as though it is connected to a franchise it blatantly isn't not also violating some advertising standards agency's rules of misleading advertising?

It obviously seems wrong to be using someone else's work in this way, even if your actual product doesn't contain it, but I'm intrigued by what the actual legalities are here.

Answer 1

The issue you identify isn't really a copyright issue. The same issue would arise if the product contained public domain images in the advertisements that aren't present in the work itself.

Essentially, the question comes down to whether there was actionable deceptive advertising. Usually, these claims arise under specialized consumer protection statutes that offer remedies and means of enforcement different from an individualized fraud lawsuit, and usually a deceptive advertising claim is easier to prove than traditional fraud lawsuit.

Traditional fraud lawsuits normally require a showing of damages caused by reasonable reliance upon the misrepresentation, which is uneconomic to prove in the case of an individual small consumer purchase.

Usually, deceptive advertising of consumer products is established in a lawsuit by a government official in charge of regulating deceptive advertising or a class action lawsuit, and often statutory damages are assigned to each violation rather than requiring detailed proof of economic harm for compensatory damages from some but not other images being present.

Often fine print in the advertisement or in a purchase form before buying the product discloses the disconnect. Also, the mere presence of an image in an advertisement doesn't necessary imply that it is included in the product. So prove of deceptive advertising liability in these cases is often difficult even with these relaxed standards. There are many gray area and close cases, and often, businesses settle these lawsuits rather than litigating them.

A more specific answer would require knowledge of which jurisdiction's laws apply, which is often a non-trivial question in Internet based advertising lawsuits.