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 dismissed 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.”
[Can I sue a movie studio for making “The Shape of Water” look interesting and smart? Or how about trailers and ads that make “Dances with Ewoks in the Fern Gully” and its sequel (“Avatar”) look original? Come on, man. — Ed]
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