Boy, will this ruling ever open a metaphorical can of worms!
Conor Woulfe and Peter Michael Rosza rented the movie “Yesterday” because they are big Ana de Armas fans and the Cuban-born actress was featured in the trailer. She was not, however, in the movie, her rold having ended up on the cutting room floor.
The devastated renters filed a lawsuit against Universal Pictures under California’s false advertising laws, seeking…wait for it!— $5 million in damages. De Armas, you should know, is not exactly Hollywood Walk of Fame material, at least not yet. Her biggest role to date was playing Marilyn Monroe in “Blonde,” which was notable because if MM had played de Armas, that would have been racist and “whitewashing.”
But I digress. Universal argued in its defense that movie trailers are just an “artistic, expressive work” that merely conveys the theme of the movie and is therefore entitled protection under the First Amendment. The judge was unimpressed and ruled that the suit could proceed to discovery, writing,
“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.”
Judge Wilson said that his ruling was limited to “representations as to whether an actress or scene is in the movie, and nothing else.” Universal disagrees, stating that the ruling could open the door to more lawsuits when a film does not meet the expectations created by the trailer. I agree wholeheartedly. The first trialer that comes to mind was the preview of Steve Martin’s ambitious “Pennies From Heaven.” The trailer made the film look like a typical Martin vehicle with the comic playing another “wild and crazy guy.” In fact, “Pennies From Heaven” was a grim tragedy, and Martin’s performance hardly raised a smile with anyone (he also wasn’t very good in it). I wouldn’t sue about it, but the trailer was definitely false advertising.
The other problem is that trailers are often made before a film is completed, so there will always be a chance that a scene or a performer won’t make it into the final version. I would assume that the ruling means that studios will add legal disclaimers to all trailers stating that they are only general representations of the movie to come, and involve no warranties or guarantees of content or quality.
But $5 million dollars as damages because that actress wasn’t in the film? Conor, Peter… it profits a man nothing to file a ridiculous lawsuit if he should loose his soul… but for Ana de Armas, guys?