Movie Studios Can Be Sued for Releasing Deceptive Trailers, Judge Rules

Image: Universal

Movie studios can be sued under false advertising laws if they release deceptive movie trailers, according to U.S. District Judge Stephen Wilson, who issued a ruling on Tuesday regarding the case in which Ana de Armas fans sued Universal for cutting the 34-year-old actress out of Yesterday, Danny Boyle’s 2019 feature about a world without the Beatles, alleging deceptive marketing after realizing that she was in the trailer but completely absent from the final version of the film, which premiered at the Tribeca Film Festival on May 4, 2019.

Universal’s lawyer claimed that the trailer was “non-commercial” speech that was protected by the First Amendment, noting that it’s not uncommon for movie trailers to include exclusive footage that isn’t in the final cut (e.g., teasers for Jurassic Park and Terminator 2: Judgment Day), but Wilson thought otherwise, ultimately labeling it as commercial speech that 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 in his ruling as seen by 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 lawyers had also tried to argue that the ruling could prompt numerous lawsuits from anyone who didn’t like a film, but that wasn’t enough to sway the judge:

“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.

Ana de Armas, who no longer holds a credit under IMDb’s page for Yesterday, was supposed to appear as a love interest for the film’s protagonist, Jack Malik (Himesh Patel), a struggling musician who wakes up and realizes he’s the only person in the world who has heard of the Beatles and goes on to share their music to the world.

Ana de Armas’ recent credits include No Time to Die, The Gray Man, and Blonde, a fictionalized take on Marilyn Monroe that is available to stream on Netflix.

Blonde is the first NC-17-rated film to be released via a streaming service.

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