Ana De Armas was in the trailer, but not the movie. Two fans sued - and already won one victory

Two plaintiffs who claim the trailer for the movie Yesterday included a scene not in the final film are entitled to proceed with claims for violations of California’s False Advertising and Unfair Competition laws against Universal Studios.  A federal court in California recently found that the plaintiffs asserted plausible claims.Yesterday is a work of fiction wherein a struggling songwriter is knocked out in a blackout only to discover on regaining consciousness that the blackout wiped out the rest of the world’s knowledge of the Beatles.  The songwriter then passes off Beatles hits as his own, and achieves fame and fortune.  As weird as the synopsis seems, it is a great film.  But I digress.   The trailer for the film included a roughly 15-second segment in which an actress named Ana De Armas appears.  In the segment, the songwriter appears on a talk show and is encouraged to write a song about “something.”  In response, the songwriter plays the Beatles song Something while De Armas looks on, and hugs him when he finishes.  The songwriter’s girlfriend, watching the talk show on TV, appears visibly upset at the interaction. None of that segment made it into the final theatrical release, and De Armas’ performance wound up on the cutting room floor as they say.  This prompted two De Armas fans – who’d each paid Amazon $3.99 to rent the film – to file suit, claiming they were deprived of the full value of the film. Universal filed a motion to dismiss the action. It argued that it made no actionable misrepresentation because it never said De Armas would be in the film.  But the court was unpersuaded.  It noted that a person doesn’t need to make an explicit affirmative misrepresentation.  As it noted, “[e]ven an implied assertion may be sufficient to deceive a reasonable consumer.”  In the court’s view, “plaintiffs are alleging that Universal made a factual representation that a scene and actress that showed up in an advertisement of the movie would appear in the movie.”  That was sufficient.Universal also claimed that no reasonable consumer would be misled by a 15-second segment of a trailer, especially in light of evidence provided by Universal that trailers sometimes include scenes not in the film.  The court disagreed.  It agreed with the plaintiffs that De Armas is a famous actress, thus it was reasonable to presume her presence in the trailer meant she would be in the film.  The fact that she was portrayed being sung to by the main character buttressed this assumption.Universal also argued that the plaintiffs suffered no damages because they got what they paid for – a viewing of a full-length movie in exchange for $3.99.  The court found, however, that the plaintiffs alleged that they did not get the full value, because, without De Armas, the movie had less value than promised.  In the court’s view, this constituted an adequate damage claim. The court also rejected Universal’s First Amendment claim, finding that the trailer was commercial speech, and thus subject to regulation under California law. The lesson here seems to be that a studio that includes scenes in trailers that aren’t in the finished product may be at risk of a legal claim.  I may start watching them more carefully myself.

Jack Greiner is a partner at the Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.

This article originally appeared on Cincinnati Enquirer: Strictly Legal: Yesterday trailer not matching film equals less mess