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| 2 minutes read

Coming Soon: Heightened Scrutiny Over Movie Trailers

Have you ever been enticed by a movie trailer, only to later realize that a scene that grabbed your attention didn’t appear in the actual film? If so, rest assured that a recent ruling by a federal judge from the Central District Court of California is likely to put an end to that practice.

In Conor Woulfe et al v. Universal City Studios LLC et al, plaintiffs Peter M. Rosza and Conor Woulfe, of California and Maryland respectively, filed a class action lawsuit against Universal Pictures (“Universal”) in January of 2022, alleging that the movie studio engaged in false advertising under California law through its marketing of the 2019 movie Yesterday.  

YesterdayThe Beatles or the band’s music. Jack chooses to capitalize on this phenomenon and begins to publicly play all The Beatles’ music, passing the songs off as his own. The key scene to the litigation depicts Jack singing The Beatles’ song Something to a character originally written into the movie, played by the actress Ana de Armas, on a late-night talk show. This scene was included in a trailer that Universal distributed to promote the movie.

tells the story of Jack, a struggling musician, who suffers an accident during a global power outage. After recovering, Jack finds himself in a world where no one else remembers

The plaintiffs in Woulfe v. Universal City claim that they each decided to rent Yesterday after seeing Ms. De Armas appear in the above-referenced trailer, presuming that Ms. De Armas would appear in the final version of the movie. As it turned out, Ms. De Armas’ character was cut from the final version of the movie entirely, including the scene referenced above.

The plaintiffs filed a lawsuit against Universal, as the studio owned the rights to Yesterday and was responsible for, among other things, the movie’s marketing, advertising and distribution. The plaintiffs alleged that Universal engaged in false advertising by releasing a trailer to the movie that contained a character and scene that Universal knew would not be included in the final version of the movie.

The primary argument in Woulfe v. Universal City comes down to whether a movie trailer amounts to a “creative expressive work” as Universal claimed in its motion to dismiss, thereby entitled to protection under the First Amendment, or if a movie trailer is considered commercial speech, and is thereby subject to false advertising laws.

Universal argued that its trailer amounted to an expressive work given that the trailer is an audiovisual work that relied on images, music and dialogue to tell a story. The court was not persuaded by this argument. And while the court conceded that a movie trailer does involve certain degrees of creativity and editorial discretion, it stopped there and found that those creative elements “[do] not outweigh the commercial nature of the trailer.” At its core, the court concluded, a movie trailer is an advertisement designed to sell a movie.

The court arrived at this conclusion after analyzing the factors set forth in the United States Supreme Court case Bolger v. Youngs Drug Prod. Corp. (1983)which considers what constitutes “commercial speech.” In brief, the Woulfe court found that: (1) the plaintiffs plausibly plead that the trailer was intended as an advertisement; (2) the trailer referred to a specific commercial product (i.e. the movie) and (3) the plaintiffs plausibly plead that the studio had an “economic motivation” for engaging in the speech at issue (i.e. promoting the movie to the general public to sell tickets).

Based on its analysis of the Bolger factors, the court in Woulfe denied Universal’s motion to dismiss as to the plaintiffs’ false advertising claim and the case is proceeding with discovery.  

If you are interested, you can read more about this case here.

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

Tags

intellectual property, advertising, film and television