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Movie studios can be sued over ‘deceptive’ trailers, judge says

A lawsuit inspired by a cut Ana de Armas’ cameo raises legal questions

a cut scene from the Avengers: Infinity War trailer featuring heroes Winter Soldier, Black Widow, Captain America, Hulk, Okoye, and Black Panther running in a line through a Wakandan forest Image: Marvel Studios

On Tuesday, a federal judge ruled that movie studios can now be sued under false advertising laws if they release deceptive 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 of two slighted Ana de Armas fans, who rented Danny Boyle and Richard CurtisYesterday after seeing de Armas in the trailer — only to discover she was cut from the final version of the movie.

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

Yesterday follows a man played by Himesh Patel, who somehow ends up in a world where The Beatles don’t exist. The movie’s trailer had a brief shot of de Armas, who would’ve played a rival love interest to Lily James’ character. But her character and plotline were reportedly excised from Yesterday because it didn’t play well with audiences.

Lawyers for Universal Pictures, which distributed the 2019 movie, argued that trailers have a long history of using shots that don’t make it into the theatrical release of a movie. They cited the trailer for Jurassic Park back in 1993, which didn’t include any footage of the movie as it functioned as a prologue for the premise. The studio’s lawyers argued that trailers fall under free speech laws, whereas U.S. District Judge Stephen Wilson maintained that they are inherently advertisements, thus must be held up to the same standards. Universal’s team said that this could open the door to false-advertising lawsuits, but Wilson pointed out that those lawsuits only hold water when a significant percentage of customers feel misled.

“The Court’s holding is limited to representations as to whether an actress or scene is in the movie, and nothing else,” the judge wrote.

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

Video game trailers have received similar scrutiny over the past two decades, leading to regulators like the U.K.’s Advertising Standards Authority fielding complaints and taking action on promotional trailers for games like No Man’s Sky and Aliens: Colonial Marines. Game trailers, which are highly scrutinized by fans for their graphical fidelity and gameplay promises, often carry disclaimers explaining that they’re composed of “game engine footage,” if not gameplay footage, or that cinematic trailers are not representative of actual gameplay.

It’s possible that movie trailers may wind up carrying similar disclaimers, if movie studios get spooked by the prospect of future lawsuits similar to Yesterday’s. But this lawsuit is about one specific movie and one specific actress. Studios may not stop including superfluous footage in trailers, but with the door open from the Yesterday case, they might be more careful about teasing cameos if the courts are watching.

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