Well the Doc opened up the old mailbag today and here’s what poured out.
Dear Dr. Ads,
There I was, minding my own business and reading MediaPost Agency Daily, when I came across this piece by Fern Siegel.
Movie Fans Can Sue Studios For Advertising Misleading Trailers
False advertising law now applies to deceptive movie trailers.
U.S. District Judge Stephen Wilson ruled movie studios can be sued under these circumstances. The case involves the 2019 film “Yesterday,” about a world without the Beatles.
Two fans of actress Ana de Armas (“Blonde,” “No Time To Die”) rented the movie in January because they saw her in the trailer. The catch? She isn’t in the actual film.
Universal Studios tried to have the case dismissed, but the judge rejected the claim.
What the hell, Doc – I thought commercial speech was protected under the First Amendment. Whatever happened to the puffery defense?
– Film Buffeted
In this case, the puffery defense seems to have gone up in smoke.
First of all, let’s stipulate that the MediaPost piece is late to the party of the first part, disclosing that “Variety first reported the news” – a week earlier, if you’re keeping score at home.
Here’s Variety reporter Gene Waddaus’ scoop on the trailer tempest.
Universal sought to throw out the lawsuit, arguing that movie trailers are entitled to broad protection under the First Amendment. 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 thus be considered “non-commercial” speech.
But [U.S. District Judge Stephen] Wilson rejected that argument, finding 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. “At its core, a trailer is an advertisement designed to sell a movie by providing consumers with a preview of the movie.”
The backstory is a total hoot: “The plaintiffs, Conor Woulfe of Maryland and Peter Michael Rosza of San Diego County, Calif., each paid $3.99 to rent ‘Yesterday’ on Amazon Prime. They are seeking at least $5 million as representatives of a class of movie customers.”
For the record, here’s the treacherous trailer.
Variety noted that Universal Studios also threw the whataboutism defense against the wall.
In their briefing on the issue, Universal’s lawyers argued that movie trailers have long included clips that do not appear in the finished film. They cited “Jurassic Park” (another Universal film), which had a trailer comprised entirely of footage that is not in the movie.
No dice – the case is headed for discovery and a motion for class certification.
At this point the Doc feels compelled to summon the Bards of Liverpool.
All my troubles seemed so far away
Now it looks as though they’re here to stay . . .
Looks as though, indeed.