Movie trailers have to walk a fine line between revealing enough of the movie to pique interest and withholding enough to preserve intrigue. Sometimes, a trailer can miss that delicate balance, creating a false impression of the movie’s central theme, plot, or even genre. But can a trailer ever be so misleading that it qualifies as false advertising? That is the central question posed in Wolfe v. Universal City Studios, LLC, a California class-action lawsuit that just survived a 12(b)(6) motion. The class of plaintiffs claims that, although the trailer for the movie Yesterday prominently featured the actress Ana de Armas, when the plaintiffs paid to see the movie specifically to see de Armas, they discovered that all of her scenes had been cut.
Yesterday tells the story of a struggling musician, Jack Malik, who wakes up after an accident to find he is in an alternate universe where The Beatles never existed—but he still remembers their music. Taking advantage of the situation, he recreates their music to achieve the fame and recognition he always desired. The trailer reveals that, as Jack gains fame for his reproductions of Beatles songs, he will face two conflicts: guilt over his plagiarism, and the tension that his sudden fame creates between him and his friend and love interest, Ellie.
One scene that was used in the trailer to establish the love-interest conflict shows that Jack has been invited onto the Late Late Show with James Corden. Sitting next to de Armas’s character on Corden’s guest couch, Jack is asked by Corden to create a song on the spot. He turns to de Armas, and begins singing the romantic Beatles’ song Something. The trailer cuts to a scene of Ellie watching this romantic display on a tablet on her home. In each of these scenes, de Armas is shot in close-up, or the blocking of the scene directs focus towards her character and her emotional reaction. De Armas’s screentime in the trailer totals about ten to fifteen seconds.
Despite the variety of claims brought by the plaintiffs, the central issue to each claim was whether the trailer made an actionable misrepresentation. In its motion to dismiss, Universal made three arguments on this issue: (1) the trailer made no actionable misrepresentation because it made no explicit factual representation that de Armas would be in the film; (2) the plaintiffs’ interpretation of the trailer was unreasonable; and, (3) the ruling would provide no principled limit. The Court rejected each argument.
First, the Court found that, although there was no explicit statement that de Armas would be in the movie (such as displaying her name in the trailer), the nature of her scenes created an implied assertion that she would appear. The court also explained that the assertion was concrete. Distinguishing the implied claim in the trailer from abstract claims made in other ads (such as a claim that a laptop would “transition seamlessly” from laptop mode to tablet), the Court found that a representation that an actress would appear in a movie is specific, measurable, and capable of being proved false.
Second, the Court addressed whether the plaintiffs’ interpretation of the trailer was reasonable, as measured by the “reasonable consumer standard.” This standard requires a showing that a significant portion of the general consuming public, acting reasonably in the circumstances, could be misled. The Court said this was a “close” question, but it ultimately found in favor of the plaintiffs, citing the length of time that de Armas appeared in the trailer, her fame as an actress, her romantic interaction with the main character, and consumer comments that expressed the expectation that she would be in the film.
Lastly, the Court addressed Universal’s concern that this would engender countless lawsuits based on consumers’ expectations about whether an actress would appear for a certain amount of time, occupy a specific role, or receive a speaking role. The Court rejected this concern by noting that, first, the reasonable consumer test would exclude many such claims, and second, by noting that the Court’s ruling was limited to representations that an actress would appear in a movie and does not extend to any such ancillary claims.
This lawsuit presents a novelty in the body of false advertising caselaw because, unlike inaccuracies in ads for other industries, inaccuracies in trailers may be unavoidable. Trailers are often created by companies not associated with the film and before principal photography is completed, which inevitably lead to the kinds of inaccuracies found in the trailer for Yesterday. But trailers are created this early by necessity. The process for making a trailer can take months to complete—sometimes as long as a year—and this doesn’t include the time needed to then promote the movie. If the trailer isn’t made until after the movie is finalized, the delay could cost the studio immense financial losses. When the release of the James Bond film No Time to Die was delayed due to Covid shutdowns, MGM accrued $1,000,000 a month in interest on the money it had borrowed to finance the film. Additionally, studios sometimes promote their film using teaser trailers, created with footage that is never intended to be shown in the film and is only meant to pique interest. In other cases, studios might intentionally alter footage for trailers to avoid spoilers.
So what should movie studios do? At the moment, they may not need to change their process at all. Although the lawsuit survived the 12(b)(6) motion, the judge acknowledged that the ruling was a close one. The lawsuit might still fail at the summary judgment stage, or if it succeeds, it might be reversed on appeal, dissuading future lawsuits. Further, even if the plaintiffs do ultimately succeed, the impact on trailer production may still be limited. As the judge acknowledged, this ruling was based on the unique circumstances that (a) a well-known celebrity (b) who was featured prominently in the trailer (c) did not appear at all in the film. Regardless of this particular suit’s outcome, the standards used to judge false advertising claims would still bar suits over common trailer inaccuracies, such as differences in tone, the use of cut scenes (assuming the cuts don’t recreate the issue here), or suggestions of certain plot points.
If the studios do wish to avoid risk, it may suffice to simply include a disclaimer at the end of a trailer. Studios might also lessen the risk of a lawsuit by editing the trailer after the movie is finalized and any inaccuracies are known. In this case, Universal might have succeeded in its 12(b)(6) motion if it had removed even a couple seconds of de Armas’s scenes from the trailer. (In fact, a post from 2019 on the movie’s twitter page advertises the sale of Blu-ray and digital copies with a short trailer that shows de Armas’s scenes after a title card announcing the inclusion of deleted scenes.) As for Universal, its website still invite visitors to watch and share the inaccurate trailer for Yesterday.