January 27, 2023

On Tuesday, a federal judge ruled that movie studios can now be sued under false advertising laws if they release misleading trailers, Variety reported. And if you thought the decision came from years of trailer-exclusive footage in Marvel movies, think again. The lawsuit came to fruition because two disparaged fans of Ana de Armas, who called Danny Boyle and Richard Curtis’ Yesterday after seeing the Armas in the trailer – only to discover she was cut from the final cut of the film.

Those fans, who paid $3.99 each to rent Yesterday via Amazon Prime Video, are seeking $5 million in damages as part of a proposed class action lawsuit.

Yesterday follows a man played by Himesh Patel, who somehow ends up in a world where The Beatles don’t exist. The film’s trailer had a short shot of de Armas, who would have played a rival love interest to Lily James’ character. But her character and storyline were reportedly cut out Yesterday because it didn’t play well with the audience.

Lawyers for Universal Pictures, which distributed the 2019 film, argued that trailers have a long history of using shots that don’t make it to a movie’s theatrical release. They called the trailer for Jurassic Park back in 1993, which contained no footage from the movie as it acted as a prologue to the premise. The studio’s lawyers argued that trailers fall under freedom of speech laws, while U.S. District Judge Stephen Wilson argued that they are inherently advertisements and so should be held to the same standards. Universal’s team said this could open the door to false advertising lawsuits, but Wilson pointed out that those lawsuits will only hold up if a significant percentage of customers feel misled.

“The judgment of the court is limited to statements as to whether an actress or scene appears in the film, and nothing else,” the judge wrote.

That decision could affect how companies like Marvel Studios release their trailers. That studio is known for including scenes in the trailers that do not appear in the final film, sometimes as a result of unfinished visual effects or reshot sequences. But some Marvel trailers – famous, Avengers: Infinite War – have shots that are not in the film that moviegoers see in theaters at all, which some viewers found misleading.

Video game trailers have been similarly scrutinized over the last two decades, leading regulators such as the UK’s Advertising Standards Authority to file complaints and take action against promotional trailers for games such as Nobody’s Heaven and Aliens: Colonial Marines. Game trailers, highly criticized by fans for their graphical fidelity and gameplay promises, often contain disclaimers explaining that they are composed of “game engine footage”, if not gameplay footage, or that theatrical trailers are not representative of the actual gameplay.

Movie trailers may contain similar disclaimers if movie studios are frightened by the prospect of future lawsuits such as Yesterdays. But this lawsuit is about one specific movie and one specific actress. Studios should not stop recording superfluous footage in trailers, but with the door open from the Yesterday case, they could be more careful about teasing cameos if the courts are watching.

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