According to Variety, U.S. District Judge Stephen Wilson ruled on Tuesday that studios can be sued under false advertising statutes if they distribute fraudulent, deceptive movie trailers. This legal dispute began with the 2019 film Yesterday, which starred Himesh Patel as a man living in a post-Beatles world.
The actor Ana de Armas, known for her roles in Knives Out, The Gray Man, and Blonde, was featured in the trailer for Yesterday. In January, two actress fans sued, claiming they rented Yesterday because of her appearance in the trailer. But when they watched the finished product, they found that de Armas wasn’t in it.
Universal had previously sought to have the lawsuit dismissed. The company maintained that movie trailers are “non-commercial” speech deserving of First Amendment protection because they are “artistic, expressive works.” Wilson disproved their claims, stating that a trailer is a form of advertising speech. This means that trailers are under the purview of the California False Advertising Law as well as the Unfair Competition Law.
Although “Universal is correct that trailers involve some creativity and editorial discretion,” Wilson said 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.”
It is typical practice for movie trailers to have material that is cut from the final product. For example, the first official trailer for Avengers: Infinity War depicts Hulk rushing alongside the Avengers, whereas in the final film, Hulk does not even appear. Nonetheless, the court’s decision leaves studios vulnerable to lawsuits over deceptive trailers.
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