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.