Movie studios can be sued under false advertising laws if they release deceptive movie trailers, a federal judge ruled on Tuesday.
U.S. District Judge Stephen Wilson issued a ruling in a case involving “Yesterday,” the 2019 film about a world without the Beatles.
Two Ana de Armas fans filed a lawsuit in January, alleging that they had rented the movie after seeing de Armas in the trailer, only to discover that she was cut out of the final film.
Universal sought to throw out the lawsuit, arguing that movie trailers are entitled to broad protection under the First Amendment. The studio’s lawyers argued that a trailer is an “artistic, expressive work” that tells a three-minute story conveying the theme of the movie, and should thus be considered “non-commercial” speech.
But Wilson rejected that argument, finding that a trailer is commercial speech and is subject to the California False Adverting Law and the state’s Unfair Competition Law.
“Universal is correct that trailers involve some creativity and editorial discretion, but this creativity does not outweigh the commercial nature of a trailer,” Wilson wrote. “At its core, a trailer is an advertisement designed to sell a movie by providing consumers with a preview of the movie.”
In their briefing on the issue, Universal’s lawyers argued that movie trailers have long included clips that do not appear in the finished film. They cited “Jurassic Park” (another Universal film), which had a trailer comprised entirely of footage that is not in the movie.
Universal also argued that classifying trailers as “commercial speech” could open the door to a parade of lawsuits from dissatisfied filmgoers, who could make a subjective claim that a film did not live up to the expectations created by the trailer.
“Under Plaintiffs’ reasoning, a trailer would be stripped of full First Amendment protection and subject to burdensome litigation anytime a viewer claimed to be disappointed with whether and how much of any person or scene they saw in the trailer was in the final film; with whether the movie fit into the kind of genre they claimed to expect; or any of an unlimited number of disappointments a viewer could claim,” the studio’s lawyers argued.
Wilson sought to address that concern, saying the false advertising law applies only when a “significant portion” of “reasonable consumers” could be misled.
“The Court’s holding is limited to representations as to whether an actress or scene is in the movie, and nothing else,” the judge wrote, holding that based on the “Yesterday” trailer, it was plausible that viewers would expect de Armas to have a significant role in the film.
De Armas was originally intended to appear as a love interest for the film’s protagonist, played by Himesh Patel. Patel’s character was to have met her on the set of James Corden’s talk show, where Patel would serenade her with the Beatles song “Something.”
Richard Curtis, the screenwriter, explained that de Armas was cut because audiences didn’t like the idea of Patel’s character straying from his primary love interest, played by Lily James.
The plaintiffs, Conor Woulfe of Maryland and Peter Michael Rosza of San Diego County, Calif., each paid $3.99 to rent “Yesterday” on Amazon Prime. They are seeking at least $5 million as representatives of a class of movie customers.
The case will now proceed to discovery and a motion for class certification.
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