Judge Agrees Consumers Can Sue Over Misleading Movie Trailers

[dead0man]

Reason

This week, U.S. District Judge Stephen V. Wilson for the Central District of California agreed that Woulfe et al. v. Universal can move forward at least in part after considering what Judge Wilson characterizes as a "blunderbuss of advertising, fraud, and misrepresentation claims."

Universal tried to use California's Anti-SLAPP laws (which, broadly speaking, provide certain legal relief against actions that would quash free expression) to throw out the suit, insisting its trailer "furthers Universal's free speech rights regarding the movie, and…the trailer itself is a protected expressive work."

In his ruling, Judge Wilson agrees the trailer was an act of free speech. But, alas, that wasn't the end of it, as it should have been.

Universal tried to argue that de Armas being in the trailer was not a sufficient reason to believe they had made a misleading "factual representation" that she'd be in the movie. Since the trailer did not explicitly state she'd be in it, there was no actionable misleading. Judge Wilson said no to that claim; by the reigning legal standards for misrepresentation, the trailer could be seen as something that would make "a significant portion of reasonable consumers" believe that "De Armas and the Segment would be in the movie." Judge Wilson pooh-poohs Universal's concern that future courts might absurdly litigate very niggling questions—like how long an actress appears in a film, what their significance in the film is, or whether they speak—if this suit goes forward.

<snip>

Trailers are frequently made and released before the final locking of a finished feature, and it's unreasonable to insist they must, on risk of legal punishment via the courts, only contain things in the final cut. (Given that tort claims are made in and enforced by government court systems, they can unjustly punish expression even when Congress has not specifically passed a law punishing the expression.)

Film industry news site Deadline sums up the fears that arise from this decision to let the suit proceed:

Although Wilson also made a point of saying in his ruling that "the Court's holding is limited to representations as to whether an actress or scene is in the movie, and nothing else," his ruling could complicate things in the loosey-goosey galaxy of trailers. With this example far from the first time a Hollywood movie trailer has featured someone ultimately not in or barely in a film, or even footage not from the pitched picture, the big picture rub here is that the hyperbole visually, verbally and otherwise of trailers may have to be toned down or risk big bucks liability.

[Benjamin Frank]

Without specifically commenting on this, making it easier for people to sue liars is a good thing, as much as (Un)Reason Magazine believes otherwise.

[Torie]

Something being actionable in an ad based on the implication of being in the movie as opposed to expressly stating the person is in the movie seems like a slippery slope and subjective. Perhaps for it to be actionable, the standard should be that the actor was not in the film at the time the trailer was made, and was cut at a later time. Or perhaps it should be caveat emptor. Who goes to/pays for a film these days based on a trailer anyway?

[SteveRogers]

Rather than any seismic change in the way movies are marketed, the most likely result if this ruling is upheld is just that studios start slapping a disclaimer at the end of trailers stating something to the effect of “this trailer may contain material not present in the final theatrical cut.”

[John Dule]

Someone should sue Disney for the Rogue One trailers next. Almost half the footage in those trailers never made it to the film.

[Mr. Reactionary]

Someone should sue Disney for the Rogue One trailers next. Almost half the footage in those trailers never made it to the film.

Someone should sue Disney since all their Star Wars movies sucked.

[John Dule]

Someone should sue Disney for the Rogue One trailers next. Almost half the footage in those trailers never made it to the film.

Someone should sue Disney since all their Star Wars movies sucked.

Sadly the courts don't yet recognize the raping of one's childhood as a legitimate tort.

[I spent the winter writing songs about getting better]

"Can" does not mean these suits have any chance of success. The ruling is just that they can proceed. I'd be shocked if anything happens. It's also worth noting that even if someone won a case the damages would only amount to the price of a movie ticket.  (Unless a person can argue and prove that seeing a movie that wasn't like what the trailer implied caused them such trauma that actually had to seek therapy or something.)

[RC (a la Frémont)]

Incredibly based

[I spent the winter writing songs about getting better]

BTW this isn't entirely new because I recall hearing about a case in the 90s in a list of something like "most amusing lawsuits"...basically a guy rented a porn video that had a certain "adult actress" prominently on the cover and implied she was the star...but she really only appeared in the film for like 5 minutes out of over an hour. The guy filed a lawsuit against the production company for the cost of the rental and an additional couple hundred thousand for "emotional distress", also the fact that this incident made him reluctant to rent porn videos in the future without stress so damages for that. The case was allowed to proceed but he did not win, and a key piece of info brought up in the trial was that he made no attempt to negotiate with the video rental store about it since in cases in the past they had allowed customers to exchange the video if returned same day for a different rental at no additional cost.

[Ferguson97]

Universal tried to argue that de Armas being in the trailer was not a sufficient reason to believe they had made a misleading "factual representation" that she'd be in the movie. Since the trailer did not explicitly state she'd be in it, there was no actionable misleading. Judge Wilson said no to that claim; by the reigning legal standards for misrepresentation, the trailer could be seen as something that would make "a significant portion of reasonable consumers" believe that "De Armas and the Segment would be in the movie." Judge Wilson pooh-poohs Universal's concern that future courts might absurdly litigate very niggling questions—like how long an actress appears in a film, what their significance in the film is, or whether they speak—if this suit goes forward.

I think it's undeniable that a reasonable person would assume that an actor being in the trailer means that they'll be in the movie, but I'm just not convinced that this constitutes an equivalent to false advertising.

[Figueira]

I remember the trailer for the 2000s movie Nim's Island implying that the plot of the movie was something totally different from what it actually was. No idea why that one sticks out in my mind.

[I spent the winter writing songs about getting better]

I remember the trailer for the 2000s movie Nim's Island implying that the plot of the movie was something totally different from what it actually was. No idea why that one sticks out in my mind.

What was it actually like?

[I spent the winter writing songs about getting better]

That trailer is weird to me to watch today by the way, just because of how narration-driven it is (although it's from 2008, movie trailer narration was in the process of being phased out then although it wasn't gone completely, and was more common in kids' movies like that), it feels almost kind of low-brow in how the narrator has to explain the plot. In a modern trailer style it would've been implied probably more effectively. That's actually why I think modern trailers are better, they fit the "show, don't tell" rule better.

Although it's noted that trailers today often do have narration, it's just being narrated by a character in the movie. Even that works because their words from the film need to be found properly and placed into the trailer.

[Figueira]

I remember the trailer for the 2000s movie Nim's Island implying that the plot of the movie was something totally different from what it actually was. No idea why that one sticks out in my mind.

What was it actually like?

I think I was thinking of this trailer:

This trailer kind of implies that Alex (Jodie Foster's character) shows up and then the father disappears, when in fact it's the other way around: he disappears and then she shows up (IIRC to help look for him).

Kind of a weird (but enjoyable enough) movie though. They refer to a typhoon as a "monsoon" at one point and it's never really explained how they have Internet and mail on the island.

[I spent the winter writing songs about getting better]

I remember the trailer for the 2000s movie Nim's Island implying that the plot of the movie was something totally different from what it actually was. No idea why that one sticks out in my mind.

What was it actually like?

I think I was thinking of this trailer:

This trailer kind of implies that Alex (Jodie Foster's character) shows up and then the father disappears, when in fact it's the other way around: he disappears and then she shows up (IIRC to help look for him).

Kind of a weird (but enjoyable enough) movie though. They refer to a typhoon as a "monsoon" at one point and it's never really explained how they have Internet and mail on the island.

Yeah that trailer doesn't even explain who Jodie Foster's character is which seems pretty important based on the first trailer.

I guess satellite internet was still very available in 2008 although quite expensive.