Ana de Armas Fans’ Lawsuit Puts Studios at Risk Over Deceptive Trailers

December 24, 2022 7:59 AM

Movie studios can be sued under false advertising laws if they release deceptive movie trailers, a federal judge ruled on Tuesday. U.S. District Judge Stephen Wilson issued a ruling in a case involving “Yesterday,” the 2019 film about a world without the Beatles.
posted by Etrigan (66 comments total)

Ah yes, a classic “San Diego Man” story. Happy to entertain this holiday season.
posted by q*ben at 8:03 AM on December 24, 2022

*retroactively sues Disney over there not being that cool-ass shot of the tie fighter zooming up into view as she struggles down the gantry at that one point in Rogue One*
posted by cortex at 8:08 AM on December 24, 2022 [30 favorites]

I wonder if a disclaimer at the end of every trailer would solve the problem... Final movie may not include all scenes, contents may settle during transport, may contain nuts
posted by chavenet at 8:13 AM on December 24, 2022 [25 favorites]

If this puts Ana de Armas in more films, I'm not mad about it.
posted by Fizz at 8:19 AM on December 24, 2022 [7 favorites]

Everyone is going to make the same jokes about how litigious we’ve all gotten, but please bear in mind: no other studio serves Ana de Armas this hot in their trailers, they were asked multiple times to lower the temperature, and the litigants received 3rd degree burns over a fair portion of their laps.
posted by condour75 at 8:22 AM on December 24, 2022 [59 favorites]

I’m on board with this. If you want a looser regulatory environment then you are arguing this is the way to keep commercial interests in line.
Otoh, I want trailers to represent the vibe of a film, not give it all away. I hope this encourages studios to focus more into n establishing shots and less on all the ‘big moments’.
posted by meinvt at 8:22 AM on December 24, 2022 [1 favorite]

Oh, won't someone save the studios from deceiving moviegoers?
posted by tommasz at 8:27 AM on December 24, 2022 [3 favorites]

"This is the most blatant case of false advertising since my suit against the movie The Neverending Story" -- Lionel Hutz
posted by bondcliff at 8:33 AM on December 24, 2022 [72 favorites]

The easy solution seems to be just to run the trailers for the movies windowed during the credits.
posted by Mitheral at 8:36 AM on December 24, 2022 [3 favorites]

According to the article, Universal was trying to dismiss the lawsuit on the grounds that movie trailers are purely artistic expressions and "non-commercial speech".

The judge quite reasonably ruled that movie trailers are advertisements and therefore commercial speech, so the lawsuit could proceed.
posted by justkevin at 8:45 AM on December 24, 2022 [26 favorites]

may contain nuts

So this includes porn?
posted by Halloween Jack at 8:46 AM on December 24, 2022 [6 favorites]

back in a bit after i talk to my lawyer about proceedings against the Kubrick estate over Shining trailer
posted by glonous keming at 8:47 AM on December 24, 2022 [4 favorites]

The judge quite reasonably ruled that movie trailers are advertisements and therefore commercial speech, so the lawsuit could proceed.

Right - the plaintiffs haven't won the case, but just the right to their day in court. And while IANAL, I'd think that Universal still has a solid case here on a few grounds such as damages and that the trailer doesn't oblige the studio to keep those scenes in the final cut. The plaintiffs still have a very uphill road here. But there is value in the courts saying that Universal doesn't get to just say "we're fully indemnified here."
posted by NoxAeternum at 9:02 AM on December 24, 2022 [4 favorites]

I don't see any likely outcome of this that isn't just more fine print and no real change to how trailers are cut.

But it is an interesting issue, I think. It isn't like the industry doesn't know that some actors bring their own audiences with them, so suggesting that an actor is in the movie when they aren't does seem problematic.
posted by jacquilynne at 9:02 AM on December 24, 2022 [6 favorites]

As with chavenet, I think the end result of this, regardless of the outcome of the trial, is a disclaimer that shows up during the credits portion of the trailer.
posted by jscalzi at 9:09 AM on December 24, 2022 [3 favorites]

Which video game trailers already do because of how development timelines work, so it's not like there isn't precedent for how this can be dealt with.
posted by NoxAeternum at 9:21 AM on December 24, 2022 [1 favorite]

I wonder if a disclaimer at the end of every trailer would solve the problem... Final movie may not include all scenes, contents may settle during transport, may contain nuts

They do this with video game trailers, which are often pre-rendered cut-scenes or content that ends up getting cut for one reason or another... not stuff that a player will actually control and sometimes stuff that doesn't make it into the game. I think it makes perfect sense.
posted by SoberHighland at 9:27 AM on December 24, 2022 [3 favorites]

My mind also went immediately to Rogue One, which had PILES of awesome stuff in the first trailer, and then none of the dialogue and most of the shots are not in the released film. (And yet, it's still the best Star Wars movie.)
posted by kaibutsu at 9:30 AM on December 24, 2022 [9 favorites]

This is dumb, but not quite as dumb as the Mac and cheese that’s ready in 3 minutes thing. Technically correct , despite the Futurama line, is the WORST kind of correct because it misses the point and makes everyone hate you. I certainly now hate these obnoxious, pedantic moviegoers whom I’ve never met.
posted by caviar2d2 at 9:32 AM on December 24, 2022 [1 favorite]

Seems like it's in the movie studio's interests for trailers to capture at least the spirit of the movies, disappointed expectations lead to low reviews and eventually low viewship when the movie doesn't find its intended audience.
posted by subdee at 9:43 AM on December 24, 2022

Now do trailers that make crappy movies look good. Or that give away the entire plot, and/or every funny line.
posted by gottabefunky at 9:57 AM on December 24, 2022

Ana de Armas is an astonishing actress (I used to refer to her as the kleptomaniac, as she stole every film she appeared in, until I realised that didn't come across as complimentarily as I intended it), but anybody so enamoured of her that they take a film studio to court over her non-appearance is probably overly-devoted and ought to have some kind of restraining order on them.

That said, if I'd been mendaciously tricked into watching a Richard Curtis film, I'd probably want to sue as well.

The most amusing result would be if the court were to order the studio to re-edit the film to put all her scenes back in, but that's probably not very likely, is it?
posted by Grangousier at 9:57 AM on December 24, 2022 [1 favorite]

This isn't about a particular shot or line of dialog. Ana de Armas was not in the final cut of the movie AT ALL! Of course they didn't plan that when the trailer was made. I assume later trailers didn't include her? But how do you correct the impression earlier trailers made?
posted by Horselover Fat at 10:00 AM on December 24, 2022 [4 favorites]

Send them to someone in records over at MinTruth.
posted by Insert Clever Name Here at 10:13 AM on December 24, 2022 [2 favorites]

if they settle the case amicably is that an Armastice
posted by cortex at 10:14 AM on December 24, 2022 [19 favorites]

I think putting an actor in a trailer who is not in the movie crosses a line into false advertising, sure...but I also think we have to ask what you've actually lost if you are "tricked" into watching a movie. Two hours of your life? $3.99?
posted by kittens for breakfast at 10:15 AM on December 24, 2022 [1 favorite]

if they settle the case amicably is that an Armastice

by cutting her scenes there was already a farewell to De Armas
posted by chavenet at 10:19 AM on December 24, 2022 [21 favorites]

Suing seems like overkill, sure, but what keeps a movie studio from putting out an actual bad faith trailer with people/scenes not in the movie? It's not like there's any way other than suing for anyone to stop anybody from doing anything, at least in the US. (This was also my opinion about the mac and cheese suit; even if it didn't merit a lawsuit, how else do you stop advertisers from lying about the product?)
posted by gentlyepigrams at 10:22 AM on December 24, 2022 [5 favorites]

*retroactively sues Disney over there not being that cool-ass shot of the tie fighter zooming up into view as she struggles down the gantry at that one point in Rogue One*

You open old wounds.
posted by Artw at 10:27 AM on December 24, 2022 [5 favorites]

I remember thinking Romy and Michelle's High School Reunion was going to be a lot better from the trailer than the movie I saw IRL. I actually apologized to my date for dragging him to it.
posted by jenfullmoon at 10:41 AM on December 24, 2022

Will this cover documentaries, too? As the Harry/Meghan series on Netflix took some serious liberties with stock/archival footage.
posted by Ideefixe at 10:43 AM on December 24, 2022

Best case scenario for me is that the plaintiffs win and get awarded damages only. So, something like $20 a person.
posted by Spike Glee at 10:48 AM on December 24, 2022

I think the studios should be forced to show the CG wireframes in the trailers so the viewers know what is synthetic imagery.
posted by bz at 10:49 AM on December 24, 2022

This specific case makes complete sense to me, but I wouldn't want it to stop trailers like the one for Strange Days, where they don't show you any of the movie.
posted by mistersix at 10:56 AM on December 24, 2022 [8 favorites]

Grangousier: anybody so enamoured of her that they take a film studio to court over her non-appearance is probably overly-devoted and ought to have some kind of restraining order on them.

It's false advertising. You don't have to be an "overly-devoted" fan of an actor to be disappointed that you spent money to see a movie because the main draw of the movie (to you) is an actor you like, only to discover they were not in the movie. This seems a pretty simple case to me, and not "Our Litigious Society/Fans Are Crazy Amirite"-worthy.
posted by tzikeh at 10:59 AM on December 24, 2022 [19 favorites]

If they're a principal (that is, their name is outright in the advertising), then yeah, I can see the false advertising. But if they're not, then I think the argument becomes much harder to make.
posted by NoxAeternum at 11:10 AM on December 24, 2022

but what keeps a movie studio from putting out an actual bad faith trailer

basically any trailer that looks good but the movie is in fact bad. What's next? Actual truth in advertising? That's like peace in war.
posted by philip-random at 11:13 AM on December 24, 2022 [1 favorite]

As I noted elsewhere, she was likely still in the movie when the trailer was made, so it likely wasn't deceptive at the time, and after a certain point the question is what is the utility of retroactively editing a trailer to make it match up to the final print, and is it worth the additional expense (the answer, from the film company point of view: Almost certainly now). Which is why ultimately a disclaimer for future trailers is likely the way to go.
posted by jscalzi at 11:13 AM on December 24, 2022 [3 favorites]

If the trailer uses a cool song the song should have to be in the movie.
posted by Artw at 11:14 AM on December 24, 2022 [13 favorites]

The plaintiffs still have a very uphill road here. But there is value in the courts saying that Universal doesn't get to just say "we're fully indemnified here."

And really, isn't the remedy here just giving the plaintiffs back the (checks notes) Three Dollars and Ninety-Nine Cents they paid in rental fees?
posted by mikelieman at 11:15 AM on December 24, 2022

"Big name actor is represented as being in the film, then isn't" feels like such a perfect weird edge case on this, is the thing that strikes me.

Like, I absolutely do not expect a film trailer to be a guarantee of anything. As folks have noted above, it is for one thing basically an expectation of modern life that a trailer will often suggest the existence of a significantly better film than the one that gets released. And teaser trailers often abdicate any responsibility to tell you anything about the film except vibes. And even stuff like Rogue One falls into what feels to me like reasonable if frustrating cases: the film's not done when the trailers start getting cut, and even just standard editing processes to cut for time might dump scenes that felt like good trailer fodder. Or maybe there's reshoots for external catastrophe reasons: an actor dies, or quits, or gets booted for horrid behavior, or whatever after the trailers started showing.

But you put a memorable face in a trailer, a big name, and there's a draw factor there and it's very simple and concrete to say: I went to see film X because the advertising told my actor Y was in it, and then they weren't. That's a very short straight line! It's hard to argue the moviegoer wasn't misled! Whether that actually qualifies as deceptive advertising seems like a separate question in its own right, though: if de Armas *was* in the movie when an earlier trailer was cut but wasn't in the later ads once it was clear to the studio her part was out with a rewrite, then that seems like a fair representation of their intent as the release approached. And yet, is it the consumer's obligation to research all later amended advertisements when they had a good faith reason to believe an earlier ad was accurate? And yet, are the stakes for seeing a film and being disappointed appropriately high to legislate the issue at this level? And yet...

It's hard to imagine what a remedy in this specific case could have been in normal practice other than the studio putting out a press release about de Armas not appearing. It'd be goofy as hell to expect that to be disclaimed in later trailers, vs. just not putting her in said trailers. And who is going to read a press release? I mean, maybe haaardcore de Armas superfans, but that's not gonna be nearly enough people to make up the $5M damages class at a $15 a head movie ticket basis.
posted by cortex at 11:32 AM on December 24, 2022 [3 favorites]

As someone who used to edit trailers for the studios, it’s not intentional. It’s just that trailers are based on re-editing the cut of the film that exists at that moment. If a trailer is coming out six months before the film is released, that’s a lot of time that the film is still being cut. It’s not intentional, it’s just that the trailer is based on a work in progress. I think a disclaimer would be the easy solution to this problem.
posted by MythMaker at 11:33 AM on December 24, 2022 [8 favorites]

If this puts Ana de Armas in more films, I'm not mad about it.

If I were a film maker, a suit like this would have me keep her out of my films on the off chance that she wind up on the cutting room floor and inspire her unhappy fans.

As to this suit - seems to me that this is why small claims court was invented. De minimis non curat lex and all that.

Though I have to admit, the plaintiffs' lawyer has got a John Grisham worthy name. Well done!
posted by BWA at 11:37 AM on December 24, 2022 [2 favorites]

The most equitable remedy is to transport the plaintiffs to the alternate timeline in which de Armas’ scenes weren’t cut from the film.
posted by zamboni at 12:03 PM on December 24, 2022 [8 favorites]

Just watched the trailers, and it's not even a subplot, it's a cameo. And could someone do a spoiler, who play john and Paul's feet where they walk on to the phrase "these guys claim they wrote the songs". (could be a while before I catch this on some late night insomnia binge :-)
posted by sammyo at 12:35 PM on December 24, 2022

There’s a clear remedy here: add a scene revealing that the main character hit his head again and this time woke up in a world where only he is aware that Ana de Armas ever existed.
posted by staggernation at 2:19 PM on December 24, 2022 [2 favorites]

If the trailer uses a cool song the song should have to be in the movie.

Case in point, the “Take Me Home Tonight” trailers heavily used the Eddie Money song of the same name but it appears no where in the final of the movie as they could only afford the rights for using the song in the trailer not in the movie.
posted by jmauro at 2:26 PM on December 24, 2022

This will depend heavily on when and where they saw the trailer. If it was the official trailer on the digital rental page and they watched it minutes before renting the film, then it feels like they have a case. If they watched it on some YouTube channel that just posts trailers, or they watched it last year, then it feels like they don't.

If Universal loses, then I expect that movie trailer YT channels will get nuked.
posted by krisjohn at 2:30 PM on December 24, 2022 [1 favorite]

Posting fake trailers for things on YouTube and chudding up the search results should also illegal or at least legally mandated to go at the back of the search results, along with reaction videos.
posted by Artw at 3:09 PM on December 24, 2022 [2 favorites]

Does this apply retroactively?

Because I have some strong Opinions about the second Suicide Squad movie and would relish having my day in court over that!
posted by Faintdreams at 3:19 PM on December 24, 2022 [1 favorite]

If the trailer uses a cool song the song should have to be in the movie

The choir version of "Creep" is very effective in The Social Network trailer, but I can't think of any scene in the movie to use it as soundtrack. Would be too on-the-nose.

What a perfect trailer though. Gets me every time.
posted by fatehunter at 3:25 PM on December 24, 2022

Any speculation on how being cut from the film in post might have affected Ms. de Armas' compensation for her work? IANAL, but if she was contracted just to provide her performance and got paid for it, then I'm not sure what tangible damages could be realistically claimed.
posted by Insert Clever Name Here at 3:35 PM on December 24, 2022

Oh, wait, it's the *fans* that are suing. Never mind.
posted by Insert Clever Name Here at 3:37 PM on December 24, 2022

Because I have some strong Opinions about the second Suicide Squad movie and would relish having my day in court over that!

Well if we bring in DC movies there’s a line to join and it’s all people pissed at WW84.
posted by Artw at 4:05 PM on December 24, 2022 [3 favorites]

Because I have some strong Opinions about the second Suicide Squad movie and would relish having my day in court over that!

Bring it on, buddy. Me and Harley Quinn with her asscheeks fully covered are right over here.
posted by praemunire at 4:25 PM on December 24, 2022 [1 favorite]

Everybody get in line behind Steven Seagall fans who went to see Executive Decision.
posted by WaterAndPixels at 5:44 PM on December 24, 2022 [2 favorites]

Uhh, seems like a good idea to transfer money from movie studios to literally anyone else. Give movie studios all the lawsuits!
posted by medusa at 6:07 PM on December 24, 2022 [1 favorite]

The tricky part here is that, by cutting Ana, they also cut part of the James Corden bit, which is an obvious net good.
posted by graventy at 6:39 PM on December 24, 2022 [3 favorites]

A few years ago I watched a documentary about the early years of Hollywood, and one of the original studio founders (Goldwyn? One of the Warners?) was quoted as saying that his mother told him to go into the movie business because it’s one of the only places where people pay their money before they see the goods.

I’m guessing she would never have agreed to making trailers.
posted by Mchelly at 7:15 PM on December 24, 2022 [3 favorites]

Is this like Marvel putting Wolverine on the cover of a comic book knowing it’ll sell better regardless of Wolverine being in the actual comic?
posted by sleeping bear at 12:31 AM on December 25, 2022

Everybody get in line behind Steven Seagall fans who went to see Executive Decision.

Shortest line ever?

(note: I am a huge Steven Seagall fan and I have seen Executive Decision and I am being personally facetious in full awareness that most people have yet to comprehend his genius)
posted by chavenet at 1:37 AM on December 25, 2022 [2 favorites]

Is it OK for any other product to make advertisements before the product exists? And then to change key features? My understanding is that in such cases corrective advertising is required, and for consumers to have adequate information clearly available at the point of sale. If I had to disable the high power setting of my hairdryer, because it kept catching on fire, the packaging needs to make clear that there is no high power setting.

It doesn’t seem like so much to ask for the film industry to have a reasonable idea about the cast when they make trailers, and maybe to not include things that they aren’t sure about. They have plenty of opportunity to create trailers later that reveal additional items.
posted by a robot made out of meat at 6:14 AM on December 25, 2022 [1 favorite]

Like, I absolutely do not expect a film trailer to be a guarantee of anything.

It's amazing how capitalists have been able to get us to blame ourselves for being lied to by advertisements.

Is the commercial actor in a white lab coat actually a doctor? No, of course not. No one believes that.

Then why do corporations put actors in white lab coats in their commercials? Because we absolutely do believe it.

You don't believe it. But your brain does.
posted by AlSweigart at 8:30 AM on December 25, 2022 [8 favorites]

$3.99? “I mean it’s one banana, Michael, what could it cost, 10 dollars?”
posted by achrise at 4:51 PM on December 25, 2022 [6 favorites]

My mind also went immediately to Rogue One, which had PILES of awesome stuff in the first trailer, and then none of the dialogue and most of the shots are not in the released film. (And yet, it's still the best Star Wars movie.)

Rogue One was originally a very different movie, apparently, until test screenings got some pretty bad reviews. So they did a lot of reshoots, which happened pretty late in the process, after the first teaser trailers went out.
posted by zardoz at 12:06 AM on December 26, 2022

If there's a wind turbine in the trailer and then it doesn't show up in the movie I would be pretty put out.
posted by biffa at 1:11 AM on December 26, 2022 [1 favorite]