Universally Deceived: False Advertising in Movie Trailers

By: Nicholas Neathamer

Have you ever been excited by a flashy movie trailer, only to be sorely disappointed when you get around to seeing the film itself? While it is certainly a common sentiment, most people would not think to litigate over the letdown. Yet in the ongoing case, Conor Woulfe et al v. Universal City Studios LLC et al, two disgruntled movie-watchers have sued Universal City Studios LLC for just such a disappointment, claiming that Universal deceived them with an early trailer for the movie Yesterday

The movie Yesterday, released in 2019, takes place in a world where everyone except the protagonist mysteriously loses all recollection of The Beatles, allowing the protagonist to pass off the band’s famous songs as his own creations. A trailer for the film featured said protagonist serenading popular actress Ana de Armas with the Beatles song “Something.” Allegedly, this brief sighting of de Armas in the trailer was enough to prompt Conor Woulfe and Peter Michael Rosza to watch Yesterday, and both men paid $3.99 on Amazon to stream it. However, to their immense disappointment, the scene with de Armas from the trailer was removed from the film’s final cut, and de Armas never makes an appearance otherwise. 

While someone’s favorite actress being cut from a film without warning sounds like a fairly trivial problem, the resulting lawsuit and its demands are nothing for Universal to laugh at. In January of 2022, Woulfe and Rosza sued Universal in the District Court for the Central District of California. The pair brought several claims that alleged the studio profited from the illegal misrepresentation of the movie, ultimately seeking $5 million for two yet-to-be-certified classes of spurned viewers of Yesterday. Woulfe and Rosza seek class certification for viewers who paid to see the film in California and Maryland. 

To combat these claims, Universal filed a special motion to strike this lawsuit under California’s Code of Civil Procedure § 425.16, the state’s anti-SLAPP statute. A SLAPP suit, or a strategic lawsuit against public participation, is generally a lawsuit without legal merit that is brought to dissuade critics from producing negative publicity. In response to such frivolous lawsuits that limit critics’ free speech, many states have enacted Anti-SLAPP statutes. California’s anti-SLAPP statute specifically provides defendants with a special motion to strike a claim that arises from an act in furtherance of free speech and in connection with a public issue, “unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” After the defendant shows that the suit arises from such an act, the burden falls on the plaintiff to show that the complaint is both legally sufficient and “supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” Hilton v. Hallmark Cards. Universal also filed a motion to dismiss the suit for failure to state a claim, under Federal Rule of Civil Procedure 12(b)(6). 

In his ruling, Judge Stephen V. Wilson worked through a multi-step framework laid out by the Ninth Circuit to reach the conclusion that this lawsuit stemmed from Universal’s right to free speech, as Universal’s creations of Yesterday and its trailer both were exercises of free speech. He also ruled that Woulfe and Rosza’s claims were in connection with a public issue for several reasons, including the fact that the user reviews, ratings, and an interview regarding the lack of de Armas in the final cut demonstrated public interest in the dispute. Because the claims center around an act of free speech that is connected to a public issue, Wilson went on to analyze whether Woulfe and Rosza had established a likelihood of success on their claims. 

Ultimately, Judge Wilson was persuaded by the majority of Universal’s challenges to the movie viewers’ claims, including barring injunctive relief. However, Wilson did leave room for the suit to continue. Namely, he allowed the plaintiff’s claims of unfair competition, false advertising, and unjust enrichment to continue, and even left open the possibility of monetary damages, stating that “the Court cannot rule as a matter of law that [Woulfe and Rosza] received the full value of what they paid for…”. 

Both the unfair competition and false advertising claims take into account the “reasonable consumer standard,” in which a plaintiff must show that the defendant’s misrepresentation is likely to deceive an ordinary consumer acting reasonably under the circumstances. Using this standard, Wilson found that Woulfe and Rosza alleged facts that demonstrate the plausibility that ordinary consumers would be misled by the trailer. Additionally, California’s false advertising law only applies when a significant portion of reasonable consumers could be deceived by a trailer. On this point, he found it plausible that viewers of Yesterday would expect Ana de Armas to feature prominently in the movie, allowing the suit to survive the anti-SLAPP motion and a motion to dismiss.

Notably, Wilson also held that Universal had no defense in the First Amendment’s free speech protections because Woulfe and Rosza had sufficiently alleged that Yesterday’s trailer is false, commercial speech. Specifically, Wilson noted that the First Amendment provides no protection for false or misleading commercial speech. Wilson, applying factors from Bolger v. Youngs Drug Products Corp., found that Yesterday’s trailer constitutes commercial speech because it (1) is an advertisement for the movie, (2) refers to the specific product of the movie, and (3) Woulfe and Rosza have alleged sufficient facts to show that Universal had an adequate economic motivation so that the economic benefit was the studio’s primary purpose for the expression in the trailer. 

However, Judge Wilson’s ruling does not mean that any studio whose movie disappoints compared to its trailer is eligible to be sued. Despite many media sources’ bold headlines that movie studios can now be sued over their deceptive trailers, Wilson explicitly limited his holding to “representations as to whether an actress or scene is in the movie, and nothing else.” This statement wisely barred Wilson’s ruling from being used to support lawsuits when moviegoers’ subjective tastes are not met by films whose trailers enticed them. Furthermore, Woulfe and Rosza’s claims have yet to actually succeed–Wilson’s ruling only shows that their surviving claims are plausible and have at least a slim likelihood of success. While this holding certainly does not yet doom movie trailers to lose their artistic freedom of expression, movie studios may want to be a bit more careful about which actors they choose to feature in their trailers moving forward. 

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