News Room

Tricky Trailers

Is a movie preview art or advertising? Judge rules that disgruntled moviegoers can sue over a misleading promo

By Brian Kabateck

It’s awards season, and for fans and film buffs, all eyes are on the movies and who will take home the industry’s highest honors for achievement in the art form last year.

Actress Ana de Armas earned SAG, Golden Globe, BAFTA, and Oscar nominations for portraying Marilyn Monroe in the controversial 2022 film Blonde.

But recently, De Armas has also been in the news for a 2019 film, Yesterday, which imagines a world that had never heard of The Beatles.

In January 2022, two de Armas fans—Peter Michael Rosza of San Diego County, California, and Conor Woulfe of Maryland—filed suit against Universal Studios, producer of Yesterday, because de Armas, who was featured in the movie trailer, wasn’t in the final version of the film.

Rosza and Woulfe, who each paid $3.99 to rent the movie on Amazon Prime, were dismayed to find de Armas was not actually in the film. The plaintiffs allege they rented the romantic comedy with the expectation—created by the trailer—that de Armas appeared in the movie, and they would not have rented it otherwise; thus, they got “no value at all” from their purchase. They claim this constitutes fraud and false advertising on Universal’s part, and, as Variety reported, “are seeking at least $5 million as representatives of a class of movie customers.”

Universal tried to have the suit thrown out, contending that a movie trailer is an “artistic, expressive work”—essentially a three-minute short film that captures the sensibility and concept of a movie—and, as such, is entitled to First Amendment protections; therefore, trailers should be treated as “non-commercial” speech.

Attorneys for Universal also argued that movie trailers have a long history of including material that wasn’t ultimately in the film. They pointed to the trailer for Jurassic Park, also produced by Universal, which was completely comprised of footage that didn’t make the final cut.

However, the case gained ground at the end of December when U.S. District Judge Stephen Wilson denied Universal’s motion to dismiss, ruling that trailers are commercial speech and therefore fall under both California’s False Advertising Law (FAL) and Unfair Competition Law (UCL). The UCL prohibits “any unlawful, unfair or fraudulent business act or practice” or “false, deceptive or misleading advertising.” though complex, the FAL essentially states that it is unlawful for an individual or business to make an untrue, deceptive, or misleading advertising claim about a product or service.

While Judge Wilson agreed with Universal that “trailers involve some creativity and editorial discretion,” he ruled that “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’s lawyers had also argued that this case could ultimately rob trailers of First Amendment protection and “open the floodgates to claims like these,” creating “burdensome litigation” for studios—any disgruntled moviegoer, disappointed in a picture for any reason, could say that the film didn’t meet their expectations based on the trailer, and sue.

However, Judge Wilson was clear that false advertising would only apply if a “significant portion” of consumers, “acting reasonably in the circumstances, could be misled.”

“The Court’s holding is limited to representations as to whether an actress or scene is in the movie, and nothing else,” Wilson wrote, ruling that, based on the Yesterday trailer, moviegoers could plausibly expect de Armas to play a substantial part in the movie.

While movie trailers may seem to walk a fine line between art and advertising, it is nonetheless true that consumers should be able to rely on big corporations—of all kinds—to be truthful in the depiction of their products.

If you or someone you love has been a victim of false advertising or harmed by a company’s fraudulent claims or practices, speak to one of the caring and experienced attorneys at Kabatek, LLP. As a leading California plaintiff’s law firm, we are committed to consumer protection and ensuring the public’s right to safe, reliable products and services that are honestly and accurately promoted.