If you plan on seeing a movie because you liked the trailer, make sure you watch the movie carefully. You may be able to sue the movie studio if it turns out that a favorite actor or scene from the trailer is cut from the film.
Two Ana de Armas fans rented “Yesterday” on Amazon Prime for $3.99 after seeing her in the trailer. Upon viewing the movie, they were upset to learn that her scenes did not make the final cut. So upset, it seems, that they chose to file a multimillion-dollar class-action lawsuit against the studio. While this may seem ridiculous, a California federal judge ruled that their lawsuit can proceed.
In the 2019 Richard Curtis rom-com “Yesterday,” Jack Malik (Himesh Patel) is a singer-songwriter whose career, despite the unconditional support of his childhood friend and manager, Ellie Appleton (Lily James), is in the dumps.
During a mysterious global blackout, Jack is in an accident just as he’s planning on giving up his dream. When he wakes up, he discovers that he is the only one in the world who has ever heard of the Beatles. He decides to pass off the Beatles’ music as his own, and he rises to international stardom. The story takes off from there.
However, the movie departed from the original script. To enhance the narrative, Curtis ended up cutting a significant portion of the screenplay. Because of this, an entire subplot featuring Ana de Armas, who played a potential love interest as the third point of a love triangle with Lily and Jack, didn’t make the final cut. But de Armas did appear in the trailer.
The Class-Action Lawsuit
Big fans Conor Woulfe of Maryland and Peter Rosza of California each rented “Yesterday” after seeing the trailer, allegedly thinking it contained de Armas. When they discovered it didn’t, they did the only natural thing and hired a lawyer. Their lawyer prepared a lengthy complaint, chock-full of fraud-related and unfair competition law claims, and filed it as a class action against Universal Pictures in federal court in California.
Universal’s lawyers asked the court to dismiss the case in its entirety, claiming that the First Amendment protected their freedom of expression in the trailer. They pointed out that other movies, such as “Jurassic Park,” contained scenes in their trailers that didn’t make the final movie, and they argued that letting the lawsuit proceed would open the floodgates to litigation by moviegoers who, having seen an exciting trailer, were disappointed by the film.
The case was assigned to U.S. District Judge Stephen Wilson, a Ronald Reagan appointee. Wilson explained de Armas’s appeal to an audience. She is, of course, a famous actress who has appeared in multiple films, including “Knives Out,” and he pointed out that she had been nominated for a Golden Globe for Best Actress in a Comedy or Musical. No doubt she’s a big draw for many moviegoers.
Wilson then described the controversial scene in the trailer that featured her. In the scene, Jack is appearing on the “James Corden Show.” Corden coerces him to sing a new song about something. While gazing at de Armas’ character Roxanne, who is sitting opposite him, Jack sings the Beatles’ song, “Something.” De Armas is visibly affected by the performance, and embraces Jack at its conclusion, kissing him on the cheek. According to Woulfe and Roszak, de Armas’ appearance in this scene is the very reason they rented the movie.
Trailers Are Advertisements
Universal responded that the content of a movie trailer is an artistic expression that is protected absolutely by the First Amendment. They argued that they couldn’t be sued for cutting a scene, even if it did appear in the trailer. Wilson agreed that a trailer is expressive, but found that in its essence, a trailer is an advertisement. He reasoned that the purpose of a movie trailer is to attract an audience, just like a TV commercial — which may also be an expressive work — is intended to get consumers to buy things.
As an advertisement — lawyers call them “commercial speech” — the trailer wasn’t entitled to the absolute protection that the First Amendment gives certain other forms of speech. Wilson ruled that a misleading trailer was no different from any other misleading advertisement and, accordingly, that Universal could be sued for false advertisement (though the judge did kick out some of the other fraud-based claims).
Release the Kraken!
While a big win for disgruntled movie fans, the judge’s ruling was limited. He specifically limited it to situations where an actor or a scene from a trailer does not appear in the final film. It seems that he was drawing a distinction between an objectively misleading trailer (which would support a fraud claim) as opposed to a subjectively misleading one (which wouldn’t).
But, as Universal pointed out, that is not going to slow down plaintiffs’ lawyers. If a trailer is misleading in some other way, what’s to stop them from bringing their own lawsuits? We can expect a boatload of deceptive movie trailer lawsuits under false advertising laws.
Court watchers may want to break out the popcorn. But don’t expect Hollywood to make a “Judge Wilson” biopic anytime soon.
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