There was an interesting ruling by U.S. District Judge Stephen V. Wilson for the Central District of California last week in Woulfe et al. v. Universal. The case was brought by Peter Michael Rosza and Conor Woulfe who were aggrieved when they rented the 2019 film “Yesterday” under the assumption that actress Ana de Armas was in the film. The trailer featured de Armas but she was later cut from the film. Judge Wilson ruled that, while such movies and their trailers are exercises of free speech, this is commercial speech that is subject to greater limitations. Wilson is allowing the plaintiffs to proceed to trial in the case over alleged misleading advertising. Many fear that this will change the free-wheeling approach to such trailers, or, as the Beatles said, “Yesterday, love was such an easy game to play Now I need a place to hide away.”
In the 3 1/2-minute trailer, de Armas appears for roughly 15 seconds. She is shown in a talk show scene embracing the lead actor, Himesh Patel, after he sings a Beatles song:
While Universal moved to dismiss under California’s Anti-SLAPP laws as an attack on its free speech rights, Judge Wilson rejected the claim. He held that such trailers make a “factual representation” on what the movie contains, including the appearance of de Armas.
As such, Judge Wilson ruled that the plaintiffs “have sufficiently alleged that the trailer is false, commercial speech” and that sort of speech “enjoys a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values.”
The case could create a fight over exceptions applied to commercial speech. Some like Brian Doherty insist that the position that commercial speech “gets less legal protection and in some nontextual way has a ‘subordinate position’ when it comes to the First Amendment was invented whole cloth by the Supreme Court.” He fears that these decisions “gives far too much leeway for clearly illegitimate intrusions on the rights to free speech and expression, leeway courts have far too often taken.”
However, the trailer is clearly advertising what consumers can expect from a movie. Stars draw audiences. The industry, however, notes that it is often the case that appearances can be cut from a film at the last minute in what Deadline calls “the loosey-goosey galaxy of trailers.”
I share the free speech concerns but I find this to be a far more difficult case. While Doherty calls this “one of the small annoyances of life as a consumer of popular culture and expression,” it is not clear that a judge can simply take that position. I agree that these plaintiffs appear either overly litigious or opportunistic in suing Universal over such an omission. They paid a mere $3.99 and still received a widely acclaimed film.
However, the studio put out a trailer that was designed to attract viewers, in part, with the draw of de Armas. This is different from suing over the theme or values or language of a film. If trailers are beyond the reach of such cases, where is the limiting principle? What if a film trailer said that the movie was a Western featuring Clint Eastwood? Would that also be viewed as protected speech after millions forked over four bucks to rent it?
Indeed, when I searched the film, I found repeated listings of de Armas as part of the cast. Thus, even if the plaintiffs did some cursory research to confirm that they could get their de Armas fix, the trailer would appear to genuinely show her as part of the cast.
These fans essentially argue, to paraphrase the song itself, “Suddenly, [It is] not half the movie it] used to be; There’s a shadow hanging over me.”
The trailer did not contain any warning that these scenes or characters may not appear in the final film. That would likely have ended any viable challenge. The studio did not want to include such a warning or disclaimer. Instead, it showed de Armas hugging Patel in the talk show scene.
I remain open to the constitutional objections. The First Amendment itself does not create a lesser status for commercial speech. However, I still find the argument incomplete in how to address fraudulent or misleading advertisements for creative works.
In the end, Universal appears mum on the reason for the de Armas cut. We are left only with the line from the signature Beatles’ song itself: “Why she had to go I don’t know she wouldn’t say … now I long for yesterday.”
Here is the opinion: Woulfe et al. v. Universal.
Can bold faced Lies be “protected” speech….should they?
How many so called Journalists today could pass that test if Lying was no longer protected…or Poiticians….or FBI Senior Management….or. Joe Biden himself?
If the Studio advertised the young lady was in the film and she was not….that is a factual situation that is easy to ascertain.
If they advertised her to be in that film and she was not….that is false advertising.
Now let them prove their case in court…..provide the incontrovertible proof the only reason they rented the movie was to see that particular actress in the film based upon that false advertising.
Anyone care to check their voter registrations and confirm they are Democrats?
Can we sue movie studios for false advertising when the trailer promises a movie will be wonderful, but it’s a flop? What about when a movie is promoted as family friendly, but then there are sexuality themes?
What a racket, suing for millions over the cost of a $3 ticket. To make this fair, the reimbursement should be $3.
I wish the politicians were held to the same standard.
Isn’t corporate censorship commercial speech?
Thank goodness our courts are properly dealing with this important stuff, instead of trivialities like election fraud.
I don’t see the freedom of speech angle at all. It seems like a fraud or breach of contract case—Universal is not delivering the product they offered. Can a restaurant menu mark their lasagna as vegan and gluten-free even if it has ground beef and standard pasta noodles? Hey, freedom of speech, man!
“At all!”
End of discussion!
My learned and wise friend, what is this then? I see it as two rubes who got butt-hurt and are wasting the court’s time.
Exactly. The freedom of speech did not in 1787 include false advertising, even if it did include false statements generally.
“Can a restaurant menu mark their lasagna as vegan and gluten-free even if it has ground beef and standard pasta noodles? Hey, freedom of speech, man! ”
I can tell you mean what the USDA & FDA have been doing for years!
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You heard it from your “News Source” Right? They Told you & Your Informed Right?
LOL;) Ph’kin Moroons.
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False advertising is not protected speech. Ask James Madison.
I have to wonder if we at times get too defensive about protecting speech. The misleading and patently false trailer ad is FALSE. Why protect it? I think the proverbial slippery slope argument applies. We did away with caveat emptor a long time ago. Truth should be a defense and absolute provably falsity should cause liability.
I don’t know whether to laugh at this or think that everyone involved in this has gone off the deep end! I don’t know what is “funnier”, two idiots filing a lawsuit about an actress not being in the movie they rented, or the judge actually taking it seriously and allowing it to proceed or that there are people who agree with the decision. In a sane world, this “lawsuit” would have never been filed, if it had, the judge should have thrown it out as a complete waste of the court’s time and the two losers would have been told “tough cheese.” What a joke.
What would a settlement be for this? $3.99 for the rental? Pain and suffering? Cognitive damage? This is over the top. How petty and stupid some really are. Sad.
It’s a class action. Class actions, by definition, are for small injuries done to many people. If they can establish that they represent a large class of people who were each cheated of $3.99 and two hours of their time, their claim will legitimately be worth that amount for each class member, plus legal costs and punitive damages.
Without class actions anyone could make a fortune by stealing small amounts from many people.
@Jeff,
The judge and the courts have to take this seriously.
Its their job.
The lawsuit is actually an interesting one.
Not sure on the arguments to get the lawsuit dropped. The truth would make a much better defense.
(See my earlier above. No intent, no mens rhea, she was most likely filmed but her scenes got cut in post. )[Note: My guess, facts not presented here to support it but most likely what happened. ]
-G
@Ian, IMHO, the courts don’t have to take this farce seriously. Two potential Darwin Award winners get butt-hurt because they aren’t intelligent enough to understand or check the cast list, and “we” are supposed to take it seriously? Sorry, this is a stupid joke.
What exactly are the damages here? If they paid $4 to rent the movie, partly because de Armas was supposed to be in it, and received a movie that delivered everything that was promised other than whatever de Armas’ contribution was intended to be? If her contribution could be cut from the movie, I would guess it was inconsequential to the movie as a whole. Total damages, including punitive damages, should be awarded in the amount of one shiny nickel. That should be reduced by the cost of taking up the Court’s time and Taxpayer money.
Actually it was a very nice little film with some very funny sequences. However, it is common knowledge that what is seen in movie trailers is often not seen in the movie. I guess the two gentleman here were not aware of that common knowledge. Films are often undergoing cuts right up until distribution and the trailers are often sent out months or a year before hand. There are even a trail of trailers on databases where you can see each new trailer as it is released. For those of us that haunt the Internet Movie Database to learn every bit of trivia of every movie, this is a no brainer. “Yesterday and all my troubles seemed so far away”. Obviously the Professor is a Beatles groupie.
No, it is NOT “common knowledge that what is seen in movie trailers is often not seen in the movie”. Not common knowledge at all.
And even if it were, that would just be saying that it’s common knowledge that advertisers often lie. Well, when advertisers are caught lying they are sued and have to pay up.
Now there is a concept of “mere puffery”. Advertisements are understood to be presenting the product in the best possible light, and reality may fall short of it in many unmeasurable ways, but not in ways that are objectively measurable. If a product doesn’t look as appetizing in real life as it does in the advertisement, that’s one thing. But if the ad says it’s 6 ounces and it’s actually only 5.5, that’s a clear lawsuit right there.
The Defendants can ask for “Help, I need somebody, not just anybody” and the Plaintiffs sound as if they are saying “I’m a loser, and I’m not what I appear to be” both to be left to “Twist and Shout” against the legal system.
I don’t see the argument that false advertising is somehow protected speech. Fraudulent representations are not protected from damage actions, as opposed to prior restraint injunctive relief.
I think it’s interesting. It is advertising. As advertising it is not simply speech. But this is incidental, I don’t see her in that scene being is being used as a reason to see the movie or not. I saw the film. It was nice. I never recognized the actress in the trailer so never missed her in the movie. In the trailer she was just a generic smitten reporter.
All that said, I often feel reporters and organizations that cling to the sacred shield of journalism to gain my trust are falsely advertising their product. Journalists need to take control of their profession before it fades out of existence.
Today they can call any writing journalism, any person a journalist. Journalism is a specific entity … like electrical contractors, lawyers, etc. This would help the public identify individuals and organizations that qualify as professionals of this craft.
It’s up to journalists. For me, transparency, identification, affiliation, how to account for errors etc. would be high on the list.
Lies should not be protected under 1st amendment protections. Trailers exist to advertise the movie. Falsely claiming an actor is in the film, would be false advertisement. Also it would be stealing the name, image and likeness of the the actor. But I have no ideal how actor contracts work. Maybe boiler plate language protects the producers. Thats a simple contract dispute
Lies are 1st amendment protected speech – meaning you are free to lie.
They are not protected against tort, and breach of contract claims.
Having not seen the film, I can only speculate that it was the overtly heteronormative hug between a man and a woman that got the scene cut.