Movie fans can sue over misleading trailer, US judge rules

[Frank Cox]

https://www.theguardian.com/film/202...us-judge-rules

Movie fans can sue over misleading trailer, US judge rules

Ana de Armas enthusiasts say they were tricked into watching the film Yesterday as the Cuban actor was in the trailer but failed to make the final cut

Movie fans disappointed that their favourite actor was cut from a film after appearing in the trailer can sue the studio for false advertising, a US judge has ruled.
Two film buffs say Universal Pictures tricked them into renting 2019 flick Yesterday because the trailer featured actor Ana de Armas.

Peter Michael Rosza of San Diego and Conor Woulfe of Maryland say they forked over $3.99 each to watch the Richard Curtis comedy on Amazon Prime, only to discover that de Armas had not made the final cut.
A class action suit filed earlier this year alleges fans had been led to expect the Cuban star of No Time To Die star would feature prominently. However, they “did not receive a movie with any appearance of Ana de Armas at all”, says the suit, reported by US media on Friday.
Accordingly, “such consumers were not provided with any value for their rental or purchase”, the suit added.

Universal had asked US district judge Stephen Wilson to throw out the complaint, arguing that trailers are protected by the first amendment of the US constitution, which guarantees free speech.

But in his ruling on Thursday, Wilson rejected the studio’s argument, saying trailers were commercial speech and subject to laws around honest advertising.

“At its core, a trailer is an advertisement designed to sell a movie by providing consumers with a preview of the movie,” the judge wrote.

A representative for Universal could not immediately be reached.

The suit is claiming at least $5m on behalf of disappointed fans.

Lawyers will convene again for the case on 3 April.

Danny Boyle’s Yesterday tells the story of a musician, played by Himesh Patel, who is thrust into an alternative reality where the Beatles do not exist.

He achieves global megastardom by releasing the Fab Four’s back catalogue as his own.

De Armas, 34, who also appeared in Knives Out in 2019, was originally cast in the movie, and appeared in the trailer and certain advertising, but her role did not make the final version, according to the suit.

[Harold Hallikainen]

I wonder if this could be carried further to require that any scenes in the trailer are also in the movie.

I also wonder who the plaintiffs and the attorneys are in this case and how the lawsuit was put together. Did the plaintiffs seek out an attorney, or the other way around? Do any of them have a history of filing similar lawsuits?

Another article that mentions a similar suit that took 7 years to settle is at https://newsletter.lawtrades.com/p/a...railer-lawsuit .

https://voi.id/en/lifestyle/126897 says the plaintiffs recruited the lawyer.

[Frank Cox]

I think that's the same lawsuit in the link you posted. I guess it's been underway for a while.

I can see where these folks have a point.

Taken to an extreme, you could have the most exciting and dramatic trailer around and when they get to the theatre you could show the audience 40 minutes of black screen.

That wouldn't lead to a lot of repeat business, of course.

It occurs to me that's the sort of thing someone might really do sometime and call it "art". It's no worse than taping a banana to a wall or whatever else gets called art these days.

[Steve Guttag]

I wonder how hight this thing might go. From what I can tell, the lawyers for the studio threw a weak 1st amendment defence. And if they put a couple of frames of the actor in question, what that satisfy the complaint?

Trailers are cut LONG before the feature is. Teasers are cut long before that. The trailer/teasers are not drawing from the final-cut of the movie, normally. Movies are mostly made in the editing room (well, good ones are). Most people wouldn't recognize the 1st cut of a movie versus what gets released. There have been major casting changes after a movie begins, famously Eric Stoltz was cut in favor of Michael J Fox for Back to the Future. There, at least, you'd have "stars" changing position, which could affect a movie much more than a lesser (below the title) actor.

I would think that the plaintiffs (and it is a class action, so the lawyers are going to make the most money on this, not the harmed movie goer) would need to show an intent to mislead. Did the studio have later versions of the trailer(s) that removed the actor in question so only early versions would have actors in that were, eventually, cut out of the movie?

Sometimes, as studio will just issue a teaser that has very little of the movie or not any of the movie too. The Jerk has the "for exhibitors only" teaser https://youtu.be/8GZMbj8dt1o

Sometime, movies, like Star Wars, the trailer undersold the movie. Anyone remember the first Star Wars trailers...they didn't have their special effects or music yet! https://youtu.be/XHk5kCIiGoM When that trailer was running...Logan's Run was the "Sci-Fi" movie of 1976. Does the original Star Wars trailer give you any real feel for it?

It is a very slippery slope to hold a feature to its early trailers. Pretty soon, you'll see interminably long, lawyer written clauses at the end of every trailer, just like for prescription ads at the end of commercials. That basically say what you see and hear in the trailer may not be representative of the feature film.

[Randy Stankey]

I think that the main problem is that the public doesn't understand how trailers are made. Most people think that the same people who made the movie create the trailers. The reality is that the studio hires completely different people, usually in a different place and at a different time than the movie was made. It's all done in the advertising department or even a completely different company that was hired for the purpose. We can't even be certain that the people who make the trailer even talk to the people who make the movie.

Most people think that trailers are made by the same people who made the movie or, at least, under the supervision of the makers. Consequently, there's a disconnect between the public and the filmmakers. Studio people take it all in stride, as if it's normal... because, to them, it IS normal. The public has no idea of how movies and trailers are made and think it's the same as everything else they see on TV.

In this case, where an actor who isn't even in the movie was featured in the trailers, I think the studio is in the wrong but I don't think that the plaintiffs should get anything more than a refund, an apology and be made to promise to be more careful, from now on.

[Frank Cox]

The public doesn't need to and shouldn't be expected to know anything about how movies are made, any more than I need to know how a snowblower is made. (How's that for a seasonal reference!)

If I go into a Burger King and order Combination Number One, I'm not going to be too happy if they take my order, charge me the regular price and hand me a package of fries. "Sorry, we're not making burgers today, enjoy your fries."

[Steve Guttag]

When you went into the Burger King to order your #1...did they show a picture of it? When the moviegoer goes to the movie theatre, is the ad still showing a pre-edit version? Was the actor in question listed in the credits in the movie poster (to keep it in the Burger King theme)? Even on the Burger King picture, most food ads have a disclaimer that the picture is not representative of what the food actually looks like. As an aside, I'll say that my first "Shake Shack" experience was the opposite...what is in the picture and what I was served matched extremely well (and was quite the tasty burger).

[Mike Blakesley]

This will lead to a line of fine print on the credit card at the end of every trailer that says

"All or part of the preceding trailer was created from footage shot for the film advertised, but may contain footage that contains images, scenes, music, places, or people that will not be used in the final version of the film. Studio Name assumes no responsibility if such footage does not appear in the final release version of the film, or in any other version that may be released in the future."

If the movie is a Zucker Brothers production, they might add "So there." at the end of the above.

[Mark Gulbrandsen]

When you went into the Burger King to order your #1...did they show a picture of it? When the moviegoer goes to the movie theatre, is the ad still showing a pre-edit version? Was the actor in question listed in the credits in the movie poster (to keep it in the Burger King theme)? Even on the Burger King picture, most food ads have a disclaimer that the picture is not representative of what the food actually looks like. As an aside, I'll say that my first "Shake Shack" experience was the opposite...what is in the picture and what I was served matched extremely well (and was quite the tasty burger).

As a matter of fact, yes! And if there is not a picture of what you want they will offer to give you your money back if you are not satisfied with the product. Weather the picture matches what you get is an entirely different subject.

[Mark Gulbrandsen]

This will lead to a line of fine print on the credit card at the end of every trailer that says

"All or part of the preceding trailer was created from footage shot for the film advertised, but may contain footage that contains images, scenes, music, places, or people that will not be used in the final version of the film. Studio Name assumes no responsibility if such footage does not appear in the final release version of the film, or in any other version that may be released in the future."

If the movie is a Zucker Brothers production, they might add "So there." at the end of the above.

This was also true of the Blues Brothers. There were scenes in the preview that were not in t he film. The 70mm Blues Brothers trailer had even more of that than the standard 35mm trailer. Most of that footage was shot when they were at the gas station.

[Marcel Birgelen]

Like Mike indicated, this will only lead to more stupid warning labels.

Let's pre-generate a bunch of them, so the studios already have some to choose from... Imagine the excitement of reading a DIFFERENT warning label in front of or after each and every trailer instead of always the same!

The pictures and sounds in this trailer or preview are a work of fiction, any resemblance to the end-product may be purely coincidal.The pictures and sounds in this trailer or preview are meant to build anticipation and excitement, The producers, directors, arctors, studios and all other parties involved in this production assume no responsibility whatsoever if the exitement of the end-product doesn't match the level of exitement anticipated in this trailer or preview. If your feelings were hurt by the content in this trailer or preview, we'll consider this as "mission accomplished".

[Leo Enticknap]

I wonder how hight this thing might go. From what I can tell, the lawyers for the studio threw a weak 1st amendment defence.

Interesting read on advertising, "commercial speech," and the First Amendment.

The short version is that combined SCOTUS precedents "...resulted in a solid First Amendment rule that commercial speech that is neither false nor misleading is fully protected speech." So I suppose this case will boil down to whether the presence of an actress in a trailer who does not appear in the finished movie can be considered as false and/or misleading. Most of the cases that resulted in precedents seem to be related either to advertising for products and services that are illegal in some jurisdictions but not others (e.g. abortion), or "vice" advertising such as for booze and tobacco. This seems to me to be, on the face of it, a much less complicated issue: could the viewer of the trailer have reasonably expected this actress's appearance to result in the decision to pay to see a film, given that his reason for doing so is exclusively the desire to see a performance by this specific actress?

The nearest the courts seem to have come to addressing this issue is over ads for ambulance chasers. Some jurisdictions imposed bans on them, on the grounds that because an accident attorney cannot guarantee the outcome of a transaction (i.e. to win a case), ads for his or her services are inherently misleading. The SCOTUS struck such prohibitions down, ruling that the ads don't necessarily have to be misleading, and that therefore a blanket ban violates 1A.

[Mike Blakesley]

The dumb thing about the warning labels is they are never onscreen long enough to be read anyway! Maybe that'll be the next lawsult, "Plaintiff claims the warning was not on screen long enough for her to discern the contents, therefore she is asking for $5 million dollars and the industry to have such labels on the screen for at least 30 seconds going forward. Or, the studio may decide that a voiceover disclaimer may be more appropriate... and no fair speeding up the words either."

[Bobby Henderson]

I'm a little surprised this thing with the movie Yesterday actually spawned a class action lawsuit. It's nothing new for movie trailers to show things that don't end up being used in a movie.

One of my favorite examples is the first teaser trailer for Twister. At the very end of the teaser there is this jump-scare camera shot. It's from inside a vehicle looking out the windshield. A tornado is in the distance. A pickup truck falls out of the sky immediately ahead. As the truck hits the ground one of its tires flies off right at the camera POV thru "our windshield." The screen goes black. That was a very dramatic shot, but it was never used in the movie. I can understand why the shot was not used in the final cut of the movie; we would expect a certain character to get killed right then and there.

Trailers are cut LONG before the feature is.

That's true for teasers, some of which get released a full year (or even more) before the movie is released. It's common for many movies to have two or more versions of trailers while the movie is well into post production.

I've grown to dislike most movie trailers. My biggest complaint is they can easily spoil much of the movie based on what's shown in the trailer. They'll often show nearly all of the movie in a shorthand version. It's not hard to remember the trailer's imagery while watching the actual movie and put two and two together and end up ruining any surprises. It's bad enough that some movies will telegraph their twists in advance on their own. It's ridiculous when a trailer does so.

Aside from that the "style" so many movie trailers have been using for the past 15-20 years has really grown old.

When you went into the Burger King to order your #1...did they show a picture of it?

When it comes to food that is professionally photographed: you wouldn't want to eat the food if you knew what the photographers were doing to it to make it properly colorful for the camera.

[Frank Cox]

Aside from that the "style" so many movie trailers have been using for the past 15-20 years has really grown old.

"In a world where" went away completely twenty years ago. Or maybe more. I can't remember when I last saw a trailer with that in it, and they all used to do it.