Two Ana de Armas fans may just have their day in court after a judge ruled that movie studios can be sued for deceptive movie trailers under false advertising laws.
On Tuesday (20 December), US District Judge Stephen Wilson issued a ruling on the fans’ January lawsuit brought against Universal Pictures.
In the lawsuit, Conour Wolfe and Peter Michael Rosza allege that they each paid $3.99 (£3.29) to rent the studio’s 2019 romance musical Yesterday – about a world void of the Beatles – on Amazon Prime after seeing De Armas in the trailer, only to find out that the Cuban-Spanish actor had been cut from the final film.
Universal sought to dismiss the case, claiming that trailers are entitled to free speech protection under the First Amendment. The studio’s lawyers argued that a trailer is a three-minute “artistic, expressive work” used to convey the movie’s themes. Therefore it should be considered “non-commercial” speech.
However, the judge denied that argument, instead ruling that a trailer is indeed commercial speech, which makes it subject to California’s False Advertising Law and 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 (via Variety). “At its core, a trailer is an advertisement designed to sell a movie by providing consumers with a preview of the movie.”
Universal’s briefing also argued that trailers have long included footage that doesn’t appear in the final cut, citing their earlier trailer for Jurassic Park, which was entirely made up of clips that weren’t in the movie.
The studio additionally raised the riskiness of classifying trailers as “commercial speech”, saying it could lead to “burdensome litigation” any time 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”; whether the movie fit into their expected “genre”; or any “unlimited number of disappointments”.
Seeking to address the concern, the judge said that the false advertising law would only apply when a “significant portion” of “reasonable consumers” could be misled.
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“The Court’s holding is limited to representations as to whether an actress or scene is in the movie, and nothing else,” Wilson wrote, maintaining that it was plausible that viewers would expect De Armas to have a significant role in the film, based on Yesterday’s trailer.
Initially, De Armas was intended to feature as a love interest for Himesh Patel’s leading character Jack, but the film’s screenwriter Richard Curtis explained that she was eventually cut because audiences weren’t fond of Jack straying from his primary love interest, portrayed by Lily James.
Jack was supposed to meet De Armas’s character during a guest appearance on James Corden’s talk show, where he would then serenade her with the Beatles track “Something”.
Woulfe and Rosza are seeking at least $5m (£4.1m) in damages and will represent a class of moviegoers. The case will move on to the discovery phase and a motion for it to be classified as a class-action lawsuit.