In a court ruling that could shake up the U.S. film marketing industry, Variety reports that movie studios can now be sued under false advertising laws for releasing ‘deceptive’ movie trailers.
On Tuesday, U.S. District Judge Stephen Wilson issued a ruling in a case involving the Beatles-themed 2019 film “Yesterday”. Two fans of “Blonde” and “Knives Out” actress Ana de Armas filed a lawsuit in January, alleging they rented the movie after seeing de Armas in the trailer.
The trouble is de Armas’ scenes were cut from the final film. Universal sought to throw out the lawsuit, arguing trailers are entitled to First Amendment protection for being an “artistic, expressive work” and thus should be considered ‘non-commercial’ speech.
Wilson rejected that argument, saying a trailer is commercial speech and subject to California’s False Advertising and Unfair Competition laws:
“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.”
Universal’s lawyers argue that trailers have long included clips that do not appear in the finished film. In addition, by classifying trailers as “commercial speech,” it opens the door to potential lawsuits from anyone claiming a film doesn’t live up to expectations created by a trailer.
Wilson addressed that concern, saying the law applies only when a “significant portion” of “reasonable consumers” could be misled and says the ruling here is “limited to representations as to whether an actress or scene is in the movie, and nothing else.”
The judge indicated that based on the trailer, it was plausible that viewers could expect de Armas to have a significant role. The case will reportedly now proceed to discovery.
This has led to understandable concern as to what impact this will have on marketing and trailers in the near future for not just films but TV trailers, video game trailers and beyond the field of entertainment.
By their nature, various film trailers could be argued to be ‘deceptive’ from shots edited to hide spoilers to unfinished effects, to trailers sporting a different tone from the finished product. Does it also mean studios won’t risk cutting a trailer anymore until the entire movie is complete?