I suspect that if McDonalds' management were only pretending that they were opening new burger franchises to dupe investors and they'd managed to raise billions in funding by pretending a single mockup restaurant with a rubber burger and some city stock footage was a restaurant chain, they would be quite likely to serve jail time. But McDonalds is, in fact, entirely capable of making and selling burgers. Nikola is not capable of making and selling functioning hydrogen fuel cell powered cars, despite lying about already having that capability seven years ago when their stock soared.

Doesn't matter what consumers know about authenticity of advertising imagery, it matters that McDonalds investors aren't being lied to about the existence of the Big Mac and Nikola One investors were being lied to about the existence of the Nikola One's propulsion system. Which is why "other companies that aren't amongst history's biggest pump and dump scams also get creative with product images" was never going to be a viable legal defence for Milton.