Article Summary: This is an opinion piece that explores the differences and distinctions between “fraud”, “misrepresentation”, and “puffing”, and how these practices affect the hobby.
Fraud, Misrepresentation, Puffing
Fellow hobbyists often use charged words to describe offerings, transactions, experiences, sellers and sales tactics. Sometimes, these terms are unintentionally misused, which I think can be problematic for the individuals using the words as well as potentially an issue for the targets of those words.
I thought this might be a good opportunity to discuss usage of some of these words, in the context of transactions and presentations/offerings of original props and wardrobe, in an attempt to influence more contemplative usage of such language as well as to draw attention to certain practices to give collectors a chance to reflect upon those practices in the context of these larger ethical and legal issues.
Puffing
“Puffing” is generally viewed as “sales talk” or “salesmanship” and is, in essence, a statement or statements of subjective opinion (and can be characterized as highly exaggerated).
In the sale of original props, collectors are exposed to a significant amount of puffing. Sometimes, however, this may be misinterpreted as “misrepresentation” or “fraud”.
The best test for evaluating such promotion is to determine whether or not it is merely an exaggeration or a subjective characterization, as opposed to an intentional or innocent misrepresentation of material facts (which, in this hobby, is typically in regards to provenance and authenticity).
Examples of “puffing” can usually be found fairly easily in eBay listings promoting original props and wardrobe, as listing titles and subtitles are used to attract attention.
As an example, excerpts from a listing entitled “SAW 3 BLOODY SAW BLADE USED IN JIGSAW’S DEATH SCENE!!” include statements such as:
“USED IN THE MOST DRAMATIC HORROR SCENE IN HISTORY!!”
“This is the ultimate display piece!!!”
“OWN ONE OF THE MOST FAMOUS PROPS IN HORROR MOVIE HISTORY!”
Now, not having personally seen any of the “Saw” films, I can’t totally discount these claims out of hand, but I’m fairly certain that if any sort of poll were taken on the “Top 10 Most Dramatic Horror Scenes in Movie History” or “The Top 10 Props in Horror Movie History”, this piece would likely not rate.
Regardless, this excessive promotion does not equate to misrepresentation or fraud, in that the potential buyer can interpret this however he would like to, but it is obviously intended to create excitement in promoting the item. It does not relate at all to provenance or authenticity, so I would not characterize those statements as material (being of real importance or consequence).
Subjectively, I’ve always viewed puffing as condescending toward the intelligence of the consumer/potential buyer, but that’s just my opinion.
In other words, if something is of such significance, it would, by definition, not require such promotion.
Innocent and Negligent Misrepresentation
“Negligent Misrepresentation” and “Innocent Misrepresentation” are different from one another, but both differ from “Puffing” as well as “Fraud” for the same reasons.
- (Innocent and Negligent) “Misrepresentation” differs from “Puffing” in that it concerns material facts and information
- (Innocent and Negligent) “Misrepresentation” differs from “Fraud” in that there is not malicious intent to deceive
“Misrepresentation” is a misstatement and/or omission of a material fact(s). The distinction between “Innocent” and “Negligent” is that innocent is typically an omission by virtue of the fact that the information is not known at the time; negligent is typically an untrue statement made while lacking the facts and/or due diligence to back up the false claim or assertion.
I believe that negligent and innocent misrepresentation is quite common in the hobby. More in actual use in the production than whether the piece is authentic or not. It is rare that collectors have the full documented history of a piece at their disposal – often what is shared, in terms of provenance and components of authenticity, is “what we know”, and the rest is left unstated.
Of course, what we actually think we know may be incorrect, or there could be additional information not at our disposal which could change the meaning or consequences of that which we are aware or are certain.
As an example, someone could acquire a piece through Premiere Props, an authorized reseller of props from various studios. The original purchaser/owner may purchase a prop from Premiere Props that was noted in the auction as an “unused” prop from the production. The original purchaser may, years later, sell that piece to another collector with the Premiere Props COA (which does not clarify the use of the piece in the way the auction description did) and not mention or make note of the “unused” designation to the new owner. That second owner may in turn sell the piece a few years later as a prop used in the production, assuming as much in that it has a studio (Premiere Props) COA. The second owner would, in effect, be misrepresenting the piece, but not with the intention of deceiving or defrauding, but simply by virtue of making an assumption that is not true.
While just one example, given the fact that this hobby is very “information-based” in terms of provenance and authenticity, and not all information is always passed on with every piece, owner to owner, I think it’s quite common that pieces are innocently and negligently misrepresented (in a variety of ways – use, ownership, etc.). This is also coupled with the fact that collectors like to assume that any piece is “the” piece unless easily shown to be untrue.
Fraud
Fraud is intentional deceit to induce a party to act to his or her detriment.
Merriam-Webster’s Dictionary of Law – Citation [http://dictionary.reference.com/cite.html?qh=fraud&ia=mwlaw]
Main Entry: fraud
Function: noun
1 a : any act, expression, omission, or concealment calculated to deceive another to his or her disadvantage; specifically : a misrepresentation or concealment with reference to some fact material to a transaction that is made with knowledge of its falsity or in reckless disregard of its truth or falsity and with the intent to deceive another and that is reasonably relied on by the other who is injured thereby
Obviously, this is the most serious danger that we face as hobbyists. Provenance can be faked or forged, regardless of the originality of the piece. Unfortunately, I think it is more common than most might think. The key to this activity is intent. If someone takes action to intentionally misrepresent a piece, it is fraud.
One fairly recent public instance of fraud was the Hero Ghostbusters Proton Pack that was consigned with Profiles in History (PiH 25 – Lot 499. “Original Hero Proton Pack from Ghostbusters II”).
In this case, someone paired a legitimate Columbia Studios COA with a replica Proton Pack, in an attempt to pass it off as an original piece. The Columbia Studios COA can be tracked back to the first buyer from the official Hollywood Vault auction by way of commentary on the Movie Prop Forum (see Movie Prop Forum topic: “State of play” October 2004).
It was later established that the original Proton Pack was sold and lost (see Movie Prop Forum topic: “Missing Proton Pack” August 2005).
And later still, determined the Proton Pack in the PiH auction was a replica (see Movie Prop Forum topic: “July 2006 Profiles in History Catalog Online!“ July 2006)
As far as how the real COA ended up with a replica pack in a public auction I can’t say.
Also, without knowing the chain of ownership from Hollywood Vault to the first owner to the second owner (where the original pack was lost?) to whoever paired the real COA with a replica pack, to whoever consigned the piece with Profiles, you can’t know where the actual fraud lies without more information.
But, obviously, fraud occurred somewhere in the chain of ownership, as an authentic COA was paired with a replica proton pack with an intention to deceive.
To the credit of Profiles in History, they immediately pulled the piece as soon as it was identified as inauthentic.
The Complexities of Making Important Distinctions
Obviously, these are some significant distinctions between “Puffing”, “Negligent & Innocent Misrepresentation”, and “Fraud” – the meaning of these words, what is required to come to appropriate conclusions, and the implications and consequences for using some words in place of others.
I think if you take anything away from this discussion, it is asking three questions when encountering such issues:
- Are the false statements or omissions intentional or unintentional?
- Are those statements presented as fact or opinion?
- Are those statements material or immaterial?
Now, you can’t always know or make definitive determinations on all of these questions.
Regarding intent (Question #1) – intentional or unintentional – you can’t go into the mind of another person. You have only facts and actions with which to make observations and come to conclusions. You need facts and information that clearly illustrate intent in order to ascribe it to an action or activity.
I think presentation (Question #2) – fact or opinion – is often quite clear, unless the person intentionally obscures it, which goes back to the “intent” issue.
Regarding the content itself (Question #3) – material or immaterial – that is often quite clear.
Obviously, a person is not always armed with all required information to come to a concrete conclusion. In other words, I’d caution anyone from shouting “fraud” if the facts can’t speak for themselves.
In summary, when there is an intentional misrepresentation or omission of material facts, it is fraud; otherwise, if it cannot be proven to be intentional, it is innocent or negligent, or is essentially inconclusive in regards to intent.
Ethics vs. Law
I think the best guide for making one’s way through the hobby is the attempt to follow proper ethics, and encourage all do the same.
Laws set minimum standards of acceptable activities. Ethics go beyond the law to determine whether an action is right or just, not just legal. Of course, the easiest way to determine whether something is ethical (which is subjective) is to apply the Golden Rule.
One of the issues we face as hobbyists is the fact that there is no specialized oversight for the activities that take place in the hobby.
My viewpoint has always been that the best course of action we, as fellow hobbyists, can take is to be very public in our opinions, our dealings, our experiences. That way, with a significant level of transparency and networking, we can all be judged by our deeds and actions and reputations.
Jason De Bord
Disclaimer: I am not an attorney and have no specialized knowledge about law and legal terms. This is merely an opinion piece put forth by a layman, with an intention to bring about discussion, debate, and insights in regards to some of the practices we encounter as collectors in the hobby.