We’ve all been there before. We go to a theater and watch one of the most anticipated movies of the year, usually the next big superhero blockbuster. Then when the credits roll we’re left wondering what happened to that particular scene or shot from the trailer that drove us to the theater. Well, those days might be coming to an end as a federal judge, U.S. District Judge Stephen Wilson, ruled this week that a movie studio can be sued for false advertising if they release deceptive trailers.
The case in question revolved around the underrated 2019 Danny Boyle film Yesterday. This musical adventure had the interesting premise of its main character, played by Himesh Patel, profiting off a world that forgot about the classic band The Beatles. The trailers before the film’s release showed that Ana de Armas would be playing a role in the film. However, if you were a fan of the now famous actress, you would have been disappointed by the complete lack of her in Yesterday. This caused two de Armas fans to file a lawsuit in January claiming they rented the film after seeing the trailer for Yesterday and making the discovery that she was cut from the final product.
Universal wanted the lawsuit thrown out as they would go on to argue that trailers were protected under the First Amendment. They further claim that trailers were “artistic, expressive work” that should be considered a three-minute story rather than an outright commercial. However, Judge Wilson rejected that and considered movie trailers “commercial speech” subject to California’s False Advertising and Unfair Competition Laws. Wilson specifically wrote, “Universal is correct that trailers involve some creativity and editorial discretion, but this creativity does not outweigh the commercial nature of a trailer. At its core, a trailer is an advertisement designed to sell a movie by providing consumers with a preview of the movie.”
Universal tried to fight back on that using clips from other past trailers from their film library that didn’t make the cut. Their biggest example was Jurassic Park, but that didn’t move the needle in their favor. The studio also noted that “commercial speech” would be a slippery slope for other dissatisfied moviegoers who could sue just because they didn’t like the film based on their expectations and excitement surrounding the trailer. Universal’s lawyer specifically said:
“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.”
However, Wilson tackled that concern saying false advertising would only apply when “significant portions” of a trailer don’t make it into the film. So things like the final shot of the Avengers: Infinity War being cut from that film wouldn’t count. Wilson also said they would only be listening to “reasonable consumers,” writing: “The Court’s holding is limited to representations as to whether an actress or scene is in the movie, and nothing else.” Again de Armas was completely cut from Yesterday before she would explode onto the scene as a major star. She was going to be a secondary love interest for Patel‘s character, but screenwriter Richard Curtis said the actress was cut because audiences didn’t like the idea of taking away focus from the primary love interest played by Lily James. The two de Armas fans paid $3.99 to rent the film and are now seeking $5 million as representatives of a class of movie customers. Because of the ruling, the case will now proceed to discovery and a motion for class certification.
As of now, you can sue studios for false advertising if you have a legitimate argument. It’s going to be interesting to see how this case proceeds given this development. On top of that, this ruling might change the way movie studios handle their marketing and trailers in the future. Most major studios don’t do their trailers in-house. The companies that do cut together these trailers usually never know what’s going to be on the cutting room floor. The Yesterday situation, in particular, is an interesting case because the film came out before de Armas became a big star. The only major film she did before Yesterday was Blade Runner 2049. Now because of Blonde, Deep Water, Knives Out, and The Gray Man, she’s arguably one of Hollywood’s hottest movie stars.