Out Of Sight, [Not] Out Of Mind: False Advertising in Movie Trailers
There is a thrill to finding out for the first time about the release of a movie. Seeing your favorite actors, trying to decipher the storyline from a three-minute clip, or being captivated by the musical choices of the trailer can certainly be propellors to this excitement. Movie trailers give us a glimpse into the world of magic, production, and creativity that awaits us on the big screen. Regardless of the genre, a movie trailer can move us and leave us counting down the days until we can finally see the full feature. And then, the day comes that we finally get to watch it. “Will it live up to our expectations?” “Will the wait have been worth it?”—we think to ourselves.
With all the anticipation built up, wouldn’t it be disappointing to finish the movie and think that it was not at all what the trailer depicted? “Where was my favorite actor?” “Where was the scene from the trailer?” These are thoughts that many of us could have, and they are questions Peter Michael Rosza and Connor Woulfe possibly had after they watched “Yesterday” off Amazon’s streaming services.
Rosza and Woulfe brought a class action suit against Universal City Studios, LLC for false advertising, fraud, and misrepresentation alleging that a scene from the “Yesterday” trailer that featured Ana de Armas never appeared in the final movie.[1] Plaintiffs claimed that they watched the movie because of de Armas and the use of the trailer constituted false advertising.[2] The question before the court, therefore, was whether Universal’s inclusion of a scene in the trailer, that ultimately did not make the cut for the feature, amounted to some actionable misrepresentation,[3] or whether it was protected under the First Amendment.[4]
False Advertising Claims
False advertising laws provide consumer protection against false and deceptive business practices.[5] Consumers are protected both on the federal[6] and state levels.
At the federal level, the Federal Trade Commission Act of 1914 (“FTCA”) prohibits “unfair or deceptive acts or practices in or affecting commerce.”[7] Unfair or deceptive acts include material acts that are likely to mislead a reasonable consumer in their decision-making process.[8] The Lanham Act also addresses false, deceptive, or unfair advertising and creates a private cause of action against such false representations.[9] A plaintiff in a false advertising claim under the Lanham Act must establish: “(1) a false statement of fact by the defendant in a commercial advertisement about its own or another’s product; (2) the statement actually deceived or has the tendency to deceive a substantial segment of its audience; (3) the deception is material, in that it is likely to influence the purchasing decision; (4) the defendant caused its false statement to enter interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the false statement, either by direct diversion of sales from itself to defendant or by a lessening of the goodwill associated with its products.”[10]
At the state level, focusing on California law, the California Business and Professional Code includes consumer protection statutes in regard to false advertising.[11] The California False Advertising Law (”FAL”)[12] and the California Unfair Competition Law (“UCL”)[13] also extensively cover false and deceptive business practices and consumer protection. Under these statutes, a statement is considered to be false when the person making it knew it to be untrue or misleading, or should have known through the exercise of reasonable care.[14] The reasonable care test that the courts apply is whether a reasonable person would rely on the advertising claim or if the advertising claim was mere puffery, which are statements that are too general an vague that would not lead a reasonable consumer to rely on them.[15]
Misrepresentation in Movie Trailers through the Lens of “Yesterday”
Having established the regulatory regime that covers false advertising, would the trailer to “Yesterday,” where Ana de Armas is sung to by the lead role in the movie for 10-15 seconds, be misrepresentative? As stated above, in order to succeed on a misrepresentation claim, the plaintiff must meet the “reasonable consumer” standard—a showing that “the alleged misrepresentation is likely to deceive the consumer.”[16] In California, “likely to deceive” has been interpreted to mean that it is probable a significant portion of the reasonable general consuming public could be misled.[17]
The Plaintiffs alleged that Universal misrepresented that Ana de Armas and her scene would be included in the final movie. They argued any consumer understands a movie trailer to convey what actors will appear in the film, so it is plausible for a consumer to believe that Ana de Armas would be a part of it.[18] Universal claimed that the trailer never explicitly stated the scene would be in the film, the trailer is too vague and non-specific for it to cause deception to viewers,[19] and that it is implausible for a consumer to be misled by it.[20]
The court disagreed with Universal: the view “an affirmative misrepresentation requires an explicit misrepresentation” is too narrow, even “an implied assertion may be sufficient to deceive a reasonable consumer.” [21] So, while the misrepresentation in this case was not express, the court held that the representation could be viewed as a claim. The court ultimately held “given the allegations that viewers of movie trailers expect to see the featured actors in the movie, that De Armas was a relatively ‘famous’ actress, the way De Armas was portrayed in the trailer, and that Plaintiffs and others expected to see De Armas and the Segment in the movie, the Court cannot say as a matter of law that Plaintiff’s misrepresentation claims are implausible.”[22]
Unfair Competition in Movie Trailers through the lens of “Yesterday”
To assert unfair competition claims, a plaintiff may allege unlawful, unfair, or fraudulent acts or practices.[23] The Court addresses only the “unlawful” claims. Plaintiffs in the case assert violations under the UCL, FAL, the Lanham Act, and some sections of the California Civil Code.[24]
Under the Lanham Act, a plaintiff must explain how the defendant violated the Act, have standing, and prove the five elements previously stated.[25] The court held that Plaintiffs would only be able to satisfy the first four elements. Although Plaintiffs would show the existence of a false statement that actually materially deceived the audience and which entered interstate commerce, they could not show a likelihood of injury by direct diversion of sales or a lessening of goodwill.[26] Therefore, the claims under the Lanham Act were dismissed.
As to the claims under the California Civil Code Sections to show Defendant’s unlawfulness, the only section that prevails as a predicate violation of the Unfair Competition Law claim is § 1709,[27] which applies to those who willfully deceive another with intent to induce them to alter their position.[28]
First Amendment Defense
Universal’s final argument is that the trailer is protected by the First Amendment as it is noncommercial creative expressive work.[29] This line of argument follows the idea that their audiovisual work, with creative discretion, expresses a story, which converts the advertisement into a noncommercial work.[30] However, this argument does not hold because almost any commercial tells a story and has some element of creative discretion; Universal’s argument would mean that no commercial would have commercial purpose.
The Court applies the Bolger factors to determine whether the trailer contains commercial speech.[31] First, the court considers whether the trailer is an advertisement. Second, it determines whether the speech refers to a specific product. And third, whether the speech has commercial motivations.[32]The Court held Universal’s trailer constitutes commercial speech because it is an advertisement that refers to a specific product – the movie – and has economic motivation as its primary focus.[33] Furthermore, it rejects the exception under Bolger that the commercial character is lost when it is ”inextricably intertwined” with noncommercial speech.[34] Under this exception, when noncommercial speech is intertwined with commercial speech, it is protected by the First Amendment. However, both the segment and the trailer are commercial speech; the fact that the trailer depicts scenes from the movie does not change this conclusion.[35] As the court has put it, “a trailer is an advertisement designed to sell a movie by providing consumers with a preview of the movie.”[36] Therefore, Plaintiffs may proceed with their FAL, UCL and unjust enrichment claims.
This decision serves as a wake-up call to Studios. The movie trailers—advertising their upcoming feature—although they are creative works, are still subject to false advertising scrutiny. Cutting scenes from the final movie may be the result of creative decisions. Yet, this creative discretion may be misrepresentative if reasonable consumers relied on those scenes depicted in the trailers for their decision-making process. For those consumers, out of sight does not mean out of mind, and it could lead to reoccurring lawsuits for the entertainment companies.
Footnotes
