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Thursday, December 22, 2022

Lawsuit Alleging False Advertising in Movie Trailer Allowed to Proceed

Even if you are a fan of actress Ana de Armas, it is probably a safe bet to say you are not as big a fan as the two fans of the Blonde, Knives Out, and No Time to Die actress who sued Universal for false advertising when Ana de Armas did not appear in the 2019 film Yesterday despite appearing in the movie’s trailer.  On December 20, 2023, a California judge allowed parts of a lawsuit accusing Universal of false advertising to proceed, ruling that a movie trailer "constitutes commercial speech" and is not entitled to broad protection under the First Amendment.


As background, in 2019, Universal released a trailer for its romantic comedy Yesterday, a film that involved a musician waking up one morning to discover no one had ever heard of The Beatles.  He becomes rich and famous by introducing the music of The Beatles into the world and claiming to be its own.  He, of course, has a love interest in the film, but the trailer also showed actress Ana de Armas playing a character who would complicate that relationship.


Paul Michael Rosza and Conor Woulfe, who are big Ana de Armas fans, both rented the film by paying $3.99 to Amazon Prime and were disappointed to see that Ana de Armas’ scenes had been cut from the movie.  The film’s director claimed that while the actress did excellent work, the disruption of the main love story hurt the movie and thus led to de Armas’ character being cut from the movie (but not the trailer).  Trailers are often released before the final movie is completed, sometimes even before all the scenes have been filmed.  Upon the discovery that de Armas was not in the movie as promised in the trailer, Rosza, who is from San Diego County, and Woulfe, who is from Maryland, initiated a lawsuit against Universal for false advertising pursuing a $5 million lawsuit as representatives of a class of movie customers who were deceived by the trailer.  Woulfe and Rosza’s lawsuit, describes de Armas as a "talented, successful, and famous actress," accuses Universal of exploiting her "fame, radiance, and brilliance to promote the film" because every other actor in the film had a "largely unknown" status.


The attorneys for Universal attempted to have the case dismissed, arguing that a trailer is an "artistic, expressive work" and therefore eligible for First Amendment protections.  However, U.S. District Judge Steven Wilson disagreed, ruling that "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."  As such, by advertising that a particular actor or actress is in the film and then having them not be in the film could be deceptive and false advertising.  Judge Wilson did stipulate that "the Court's holding is limited to representations as to whether an actress or scene is in the movie, and nothing else."  The case will now move to discovery and potentially become a class action lawsuit.

The outcome of this lawsuit will have a major impact on the process of movie trailers in the future, but even in the short term there could be ripple effects meaning leaner more atmospheric trailers that run short on actual footage.  Or, it could be the advent of a new disclaimer saying that the trailer is not indicative of a final product.

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