US court: Fake trailers will be prosecuted for fraud

Movie studios can be sued for false advertising if they release deceptive movie trailers, a federal judge has ruled.

The ruling came after two fans of Ana de Armas sued Universal Pictures after the actress appeared in the trailer for the 2019 film "Yesterday" but was not included in the film.

Universal Pictures tried to have the court dismiss the case, arguing that movie trailers are protected under the First Amendment. The studio's lawyers argued that trailers are "artistic, expressive works" that tell a three-minute story and convey the theme of the film, and therefore should be considered "non-commercial" speech.

Federal Judge Stephen Wilson rejected that argument, ruling that the trailers were commercial activities subject to California's false advertising law and the state's unfair competition law.

"Universal is partially correct that trailers contain some creativity and editorial discretion, but that creativity does not offset the commercial nature of trailers, which are essentially advertisements that sell movies by providing consumers with a sneak peek at the film," Wilson wrote.

In their brief on the issue, Universal's lawyers noted that movie trailers have long included footage that doesn't appear in the finished film, citing another Universal movie, "Jurassic Park," whose trailer consisted entirely of footage that wasn't in the film.

Universal also argues that classifying trailers as "commercial speech" could open the door to a wave of lawsuits from disgruntled moviegoers who might subjectively claim that a film did not live up to the expectations created by its trailer.

The judge held that this argument only applied where a “substantial proportion” of “reasonable consumers” might be misled.

The judge also wrote: "The court's ruling is limited to statements about the presence or absence of an actress or scene in the film and nothing else." He argued that based on the trailer for "Yesterday," audiences had reason to expect Ana de Armas to play a prominent role in the film.

Yesterday screenwriter Richard Curtis explained that Ana de Armas was cut from the finished film because audiences didn't like the fact that Patel's character betrayed her love interest, played by Lily James.

The two plaintiffs reportedly paid $3.99 each to digitally rent "Yesterday" from Amazon. As representatives of movie consumers, they are seeking at least $5 million in damages.

The case will now proceed to the discovery phase and an application for class action certification will be filed.