Can Movie Trailers Be False Advertisements? One Court Says, Maybe.

Is there a legal, cognizable claim for a consumer who was misled by a movie trailer? Perhaps. In June 2022, two Plaintiffs filed a lawsuit against Universal concerning a movie they streamed titled Yesterday which is owned by Universal.  Woulfe et al v. Universal City Studios LLC et al., 22-cv-00459, ECF No. 83 (C.D. Cal. Dec. 20, 2022).  Prior to streaming, the Plaintiffs watched the movie trailer, which featured actress Ana De Armas.  In the complaint, Plaintiffs alleged they were persuaded by the trailer, and De Armas’ role in particular to stream the movie.  However, De Armas’ character was cut from the final version of Yesterday, so she was not featured in the film whatsoever.  The Plaintiffs alleged they would not have rented the movie had they known De Armas would not appear in the movie. The Plaintiffs then sued Universal under a host of consumer protection violations, including a violation of the California Unfair Competition Law, California Consumer Legal Remedies Act, and California False Advertising Law. 

In response, Universal moved to dismiss and filed an anti-SLAPP strike motion.  Universal argued that the trailer made no actionable misrepresentation as there was no express statement of De Armas’ inclusion in the movie and, at best, a movie trailer provides only a vague representation of the movie.  However, advertisements can contain both express and implied claims, and those implied claims can mislead consumers.  And the Court articulated that while movie trailers may not provide express claims, the movie trailer may be viewed as a measurable claim implying a factual representation that actors would appear in a movie.  Additionally, Universal argued that Plaintiffs failed to plausibly allege a significant portion of consumers were misled by the movie trailer.  The Court was unpersuaded by Universal and found “it is plausible that a consumer could interpret De Armas’ appearance as more than de minimis.”  Woulfe at *13.  Further, Universal argued that Plaintiffs suffered no damages because the price to stream Yesterday would have been $3.99 regardless of De Armas’ participation.  Plaintiffs’ alleged they would not have purchased the product but for De Armas’ participation rendering the product valueless or at least less value than advertised.  At the pleading stage, the court found these assertions suffice because plaintiffs need only allege the purchase was made based on false price information.  Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1106-07 (9^th Cir. 2013). 

Universal also raised a First Amendment defense contending the movie trailer is a creative, expressive work and that the lawsuit interferes with editorial choice.  The Plaintiffs argued that the speech is commercial.  Speech is commercial where 1) the speech is an advertisement, 2) the speech refers to a particular product, and 3) the speaker is economically motivated.  Hunt v. City of L.A., 638 F.3d 703, 715 (9^th Cir. 2011).  The parties further argued whether the commercial speech was inextricably intertwined with protected speech.  Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107, 1119 (9^th Cir. 2021). The court held that “Universal is correct that trailers involve some creativity and editorial discretion, but this creativity does not outweigh the commercial nature of the trailer[.]” Woulfe at *29.  The Court found that the Plaintiffs sufficiently alleged that the trailer was false, commercial speech and that the movie trailer as a whole was commercial speech, necessarily concluding that no protected speech was intertwined.  Woulfe at *28‑31. 

In his order, Judge Wilson found that the Plaintiffs satisfied their burden for at least three of the claims, including the California False Advertising Law and California Unfair Competition Law claims.  The Woulfe case will procced to discovery giving the Plaintiffs an opportunity to certify a class and prove their claim that the Yesterday movie trailer was a false advertisement due to the inclusion of actress Ana de Armas.  Universal complained that allowing this false advertising lawsuit to proceed would encourage a litany of lawsuits from dissatisfied viewers.  The Court was also unpersuaded by this argument, but only time will tell if this becomes the new trend where dissatisfied viewers are emboldened to file lawsuits against movie studios. 

Though the three aforementioned laws provide distinct causes of action, each is grounded in the reasonable consumer standard.  This test takes a common-sense approach regarding what an ordinary customer may reasonably expect based on the advertisement.  Williams v. Gerber Prod. Co., 552 F.3d 934, 938 (9^th Cir. 2008).  The reasonable consumer standard is often the determinative factor in resolving false advertising class action lawsuits, which may necessitate factual discovery to determine ‘reasonableness’. Although Judge Wilson found that these particular facts warranted discovery, namely the inclusion of an actor in the trailer not included in the final movie product, other courts have found claims to be untenable as a matter of law at the pleadings stage.  Chufen Chen v. Dunkin’ Brands, Inc., 954 F.3d 492 (2d Cir. 2020) (finding that a court may determine as a matter of law that an allegedly deceptive advertisement would not have misled a reasonable consumer); Bell v. Publix Super Markets, Inc., 982 F.3d 468, 477 (7th Cir. 2020) (“[W]here plaintiffs base deceptive advertising claims on unreasonable or fanciful interpretations of labels or other advertising, dismissal on the pleadings may well be justified.”).  Thus, even movie studios and others using commercials, teasers, or movie trailers conveying underlying artistic work need to consider the legal implications and risk of advertisement-related products, likely to be considered commercial speech, that may subject them to false advertising lawsuits and/or regulatory scrutiny.