Judge OKs $5 Million Suit Over $3.99 Movie Trailer Fraud; Could Trailers for Motion Pictures Become The Next Tobacco?
Lawsuit Over Movie Trailer Fraud
WASHINGTON, D, C. (December 26, 2022) – A judge has upheld the validity of a lawsuit seeking $5 million in damages because plaintiffs were duped into renting a film for $3.99 by an allegedly misleading trailer, after holding that the trailer itself – unlike the movie – was not protected by the First Amendment, notes public interest law professor John Banzhaf.
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Although the door for such legal actions is opened just a bit with this ruling, it could mean that eventually movie trailers could become the next tobacco in terms of lucrative lawsuits, says Banzhaf, who has been called "The Law Professor Who Masterminded Litigation Against the Tobacco Industry," a "King of Class Action Law Suits," and "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars."
Two fans of Ana De Armas sued Universal because the trailer for the firm "Yesterday," which included brief scenes which showed the actress, had been cut so she not longer appeared at all in the movie which each plaintiff had rented from Amazon for $3.99.
The judge permitted the class action lawsuit for $5 million to proceed, ruling that, because the trailer was in the nature of an advertisement, it did not have the First Amendment protection which the movie itself would certainly enjoy. As judge Stephen Wilson wrote in his potentially very significant ruling:
“Universal is correct that trailers involve some creativity and editorial discretion, but this creativity does not outweigh the commercial nature of a trailer. At its core, a trailer is an advertisement designed to sell a movie by providing consumers with a preview of the movie.”
Therefore, he rules, the were classified as “commercial speech,” making them subject to California's tough and sweeping "False Advertising" and "Unfair Competition" laws.
This ruling - that the trailer for a movie can be subject to the same false advertising and unfair competition claims as any other product - could have widespread implications, suggest Banzhaf.
Although here the misrepresentation is clear and not at all subjective - i.e., the trailer did in fact depict an actress who did not in fact appear in the movie - the ruling opens the door to broader and less objective claims that a movie trailer was deceptive because it unfairly misrepresented the movie itself.
In fact, exactly such a lawsuit was filed back in 2011, and was still being litigated in 2017.
It involved the movie "Drive." Plaintiff alleged that the trailer was deceptive because it led her to believe that there would be lots of fast-driving action scenes - more like the movie "The Fast and the Furious" - than it actually contained. As the court opinion described it:
"[Plaintiff] first asserts that Drive’s … advertising falsely promoted it as 'a chase, race, or high speed action driving film,' similar to The Fast and the Furious and that the preview failed to reveal that the film includes 'many segments of slow paced, interpersonal drama.”
Although in Drive, the judge concluded that the trailer was not deceptive because the movie contained enough action driving scenes, other judges in cases involving other movies could well conclude that, despite what was suggested by the trailer, the movie in question did not contain enough "high speed action driving" scenes - or romantic scenes, or terrifying scenes, or whatever the trailer allegedly promised.
The door for such law suits is opened even further by two other factors, suggests the law professor.
Since it has long been the law that ads on television and elsewhere directed to children were to be judged by a kid's (and not an adult) standard - since what might be clear to an adult might nevertheless be misleading to a 6 or 8 or 10 or even 12-year old child - parents could sue if a child claimed that the ad he saw was misleading about the actual movie.
Such suits might be both easy and lucrative for any lawyers who have small children, observes Banzhaf.
The standard of what might be misleading to a child is obviously very low because of their vivid imaginations and relative lack of sophistication, with many still believing in Santa Clause, that there might be monsters under their beds or in their closets, that a tooth fairy visits, or that they have invisible friends, etc.
Another possible option for attorneys eager to cash in on such law suits would be to claim that a movie trailer failed to disclose and/or to put viewers on notice that the movie itself contained large amounts of anti-Semitic (or racist, sexist, misogynistic, homophobic, or other objectionable) content. Indeed, this has already begun happening.
In the Drive litigation. the court wrote that "plaintiff asserts … that the movie Drive 'used extreme gratuitous defamatory dehumanizing racism to depict members of the Jewish faith, and thereby promoted criminal violence against members of the Jewish faith' and that the trailer was misleading as it excluded any reference to the film’s anti-Semitic nature."
Water For Elephant
In another lawsuit brought several years later, a plaintiff charged that the movie "Water For Elephant" contained hidden anti-Semitic messages, including subliminal messages that promote hatred of Jews.
Such law suits might have a better chance of succeeding today than in earlier years for at least two reasons, argues the law professor.
First, there is a growing concern about and demand for so-called "trigger warnings"; defined as statements made prior to sharing potentially disturbing content in plays, movies, and even in college lectures.
While once deemed necessary only for extreme content such as for nudity or strobe lights (which could trigger seizures), today such warnings are increasingly being demanded for topics as diverse as homophobia or transphobia, rape and other forms of sexual violence, child abuse, violence, incest, animal abuse or death, racism, self-harm, etc.; with those who insist on the warnings claiming that a failure to include them can have devastating consequences.
Second, there are ever growing reports about both discrimination against and violence directed towards Jews, Asians, LGBTQ+ members, and other groups, so that a failure to disclose in a trailer that the film contains messages which might arguable encourage such behavior could become legally actionable.
In other words, since the First Amendment appears to prevent law suits directly against movies which allegedly promote such themes, a workaround might be to sue if the trailer (which is only an ad which does not enjoy such protection) fails to disclose such content, says Banzhaf.
A failure to disclose in an ad a factor which might be of concern to a viewer can create legal liability, says Banzhaf, noting a law suit he initiated against McDonald's over a claim for its french fries.
Although the claim was truthful, Banzhaf argued that McDonald's failure to disclose another relevant fact in its ads made it unfair and deceptive, and therefore illegal.
Unwilling to risk a trial, McDonald's paid over twelve million dollars to settle the lawsuit, changed the ad to include the previously omitted fact, and even published an apology.
Similarly, movie studios might be reluctant to go to trial in lawsuits seeking millions of dollars over claims that a trailer was deceptive, failed to include a trigger warning, was deceptive to a young child (even if not to an adult), or was deceptive because it omitted a key detail, suggests Prof Banzhaf.
