US Can Movie Trailers Be False Advertisements? One Court Says, Maybe.
Is there a legal and recognized claim for a consumer who has been misled by a movie advertisement? Maybe. In June 2022, two plaintiffs filed a lawsuit against Universal over a Universal-owned movie that aired yesterday . Wolff et al. v. Universal City Studios LLC et al ., 22-cv-00459, ECF no. 83 (CD Cal. Dec. 20, 2022). Before the broadcast, the plaintiffs watched a trailer made by actress Ana de Armas. In the complaint, the defendants allege that the trailer, specifically De Armas' role, persuaded them to submit the film. However, De Armas' character was cut from the latest version of Yesterday , so she never appeared in the film. Prosecutors argued that if they had known D'Armas would not appear in the film, they would not have rented the film. The plaintiffs sued Universal for numerous consumer protection violations, including California's Unfair Competition Law, California's Consumer Compensation Law, and California's False Advertising Law.
In response, Universal Fires strikes against the SLAPP. Universal argued that there was no misrepresentation in the trailer to give rise to a cause of action, as there was no clear indication of D'Armas' inclusion in the film. However, advertisements can make explicit and implicit claims, and these implicit claims can mislead consumers. The court held that while movie trailers do not necessarily provide an explicit description, a movie trailer can be considered a quantifiable description, indicating that the actors will appear in the film. Universal also argued that the plaintiffs could not reasonably claim that a significant portion of consumers were misled by the film's trailer. Universal was not convinced in court and stated that "a consumer may interpret De Armas's appearance as more than a little." Wolf at * 13. Universal also argued that the plaintiffs suffered no damages because yesterday 's airtime would have sold for $3.99 regardless of De Armas' participation. The plaintiffs argued that they would not have purchased the product if D'Armas' involvement had not rendered the product useless, or at least less than advertised. At the trial stage, the court held that these claims were sufficient because the plaintiffs had to argue that the purchase was made solely on the basis of false pricing information. Hinojos C. Kohl's Corp. 718 F.3d 1098, 1106-07 (9th Cir. 2013).
Universal filed a First Amendment defense, arguing that the trailer was a work of creativity and expression and that the lawsuit interfered with editorial choices. The plaintiffs argued that the performance was commercial. A speech is an advertisement if 1) the speech is an advertisement, 2) the speech refers to a specific product, and 3) the speaker has an economic motive. Hunt v. City of Los Angeles , 638 F.3d 703, 715 ( 9th Cir. 2011). The parties also discussed that trade talks were closely linked to conservation talks. Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107, 1119 ( 9th Cir.2021). The court ruled that "Universal is correct that the trailer includes some creative and editorial appreciation, but the creativity does not exceed the trailer's commercial character[." Wolfe to *29. The court found that the plaintiffs have sufficiently proven. The trailer was a false trade term and the trailer was a generic trade term, implying that there is not necessarily an overlapping protected term. Wolf in * 28-31.
In his order, Judge Wilson carried the burden on at least three counts, including claims under California's False Advertising Law and California's Unfair Competition Law. Wolfe 's case will go to court, giving the plaintiffs the opportunity to prove as a class and prove their claim that yesterday's trailer was false advertising due to the inclusion of actress Ana de Armas. Universal has complained that the misleading lawsuit will lead to a series of lawsuits from disgruntled moviegoers. Even the court was not convinced by this argument, but only time will tell if this will be a new trend, as disgruntled moviegoers will be encouraged to file lawsuits against the studios.
Although the above three laws have different reasons for their work, each is based on reasonable consumer standards. This test takes a reasonable approach to what the average customer can reasonably expect based on your ad. Williams vs. Gerber 552 F.3d 934, 938 ( 9th Cir. 2008). The standard of reasonableness for the consumer is often the determining factor in decisions about misleading advertising category actions, which may require a factual inquiry to determine 'reasonableness'. Although Judge Wilson found these facts justified the finding, namely the inclusion in the film of an actor who was not part of the film's final product, other courts found the claims dubious. Chufen Chen v. Dunkin' Brands, Inc. 954 F.3d 492 (2d 2020) (court may lawfully determine that alleged false advertising does not mislead reasonable consumers). Bell Publix Supermarkets, Inc. , 982 F.3d 468, 477 (7th Cir. 2020). Products that use talking ads, t-shirts, or cinematic ads should consider the legal implications and risks of advertising related products that may appear to be trade rumors. Action. Action for false advertising and/or regulatory action.
For more information please contact:
Meshach Y. Rhodes, Partner, Crowell & Moring
[email protected]
