Ana de Armas featured in the trailer for Yesterday, but was cut from the final film Photo: TOMMASO BODDI / AFP
By Steven McIntosh, BBC Entertainment reporter
Film studio Universal can be sued for false advertising after fans complained a movie trailer was misleading, a US judge has ruled.
Two fans of the actress Ana de Armas filed a lawsuit in January after renting the 2019 film Yesterday.
The actress was seen in the trailer, but the pair were disappointed to find she had been cut from the final film.
The plaintiffs, Conor Woulfe and Peter Michael Rosza, each paid US$3.99 (NZ$6.33) to rent Yesterday on Amazon Prime.
Woulfe and Rosza are seeking at least $5 million (NZ$8m) from Universal in the case, which has been filed as a class action on behalf of other disappointed fans.
The pair argued they would not have paid the money to rent the film if they had known the actress did not feature in it.
California US district judge Stephen Wilson ruled that their legal action can go ahead.
Universal, the studio behind the film, sought to throw out the lawsuit, arguing that movie trailers are entitled to broad protection under the First Amendment, which protects free speech rights and the press.
The studio's lawyers argued that a trailer is an "artistic, expressive work" that tells a three-minute story conveying the theme of the movie, and should therefore be considered "non-commercial" speech.
But the judge rejected that argument, ruling that a trailer is commercial speech and is subject to the California False Adverting Law and the state's Unfair Competition Law.
"Universal is correct that trailers involve some creativity and editorial discretion, but this creativity does not outweigh the commercial nature of a trailer," Wilson wrote in his ruling.
"At its core, a trailer is an advertisement designed to sell a movie by providing consumers with a preview of the movie."
In their briefing on the issue, Universal's lawyers argued that it is not unusual for movie trailers to feature clips that do not appear in the finished film.
They referred to Jurassic Park, another Universal film, one trailer for which they said was comprised entirely of footage that is not in the movie.
Universal also argued that classifying trailers as "commercial speech" could open the door to many more lawsuits from dissatisfied filmgoers, who could make a subjective claim that a film did not live up to the expectations created by the trailer.
Wilson sought to address that concern, saying the false advertising law applies only when a "significant portion" of "reasonable consumers" could be misled.
The judge said the court's holding was limited to cases where an actor or scene from the trailer does not feature in the finished film.
Photo: ETALON FILM - WORKING TITLE FILM
In the case of the Yesterday trailer, he said, it was plausible that viewers would expect de Armas to have a significant role in the film.
De Armas, a Cuban-Spanish actress who starred in Knives Out, was originally set to appear as a love interest for the film's protagonist, played by Himesh Patel.
Patel's character was to have met her on the set of James Corden's talk show, where Patel would serenade her with the Beatles song 'Something'. Some footage of these scenes featured in the trailer.
Richard Curtis, the screenwriter, explained that de Armas was cut because audiences did not like the idea of Patel's character straying from his primary love interest, played by Lily James.
In 2019, he said it had been a "very traumatic cut", because de Armas was "brilliant" in the role.
Yesterday tells the story of a young man who wakes up after a bicycle crash to find nobody on earth seems to remember The Beatles.
He goes on to find fame and fortune by performing the songs himself, and faces a moral dilemma when he is credited as the writer.
Woulfe and Rosza's lawsuit will now proceed to discovery and a motion for class certification.
- BBC