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My family knows that I get grumpy if we get to the theater after the previews have started, as previews are among my favorite parts of the in-theater versus stream-from-home experience. Yet many moviegoers may feel that the trailer didn’t accurately reflect the movie as a whole. But does such a feeling of disappointment rise to the level of a legal violation? A recent court decision involving a class action over the trailer for the movie “Yesterday” provides a good example regarding the difficult line between a claim and a puff.

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As we all know, a puff is a statement about a product or service that doesn’t have to be substantiated because it is not capable of objective proof or is so over the top or in some other way not the sort of claim for which consumers would expect actual support. Most movie trailers are full of puffs, from the review that pops on screen proclaiming “Another Masterpiece,” to the nonstop humorous vignettes that after we’ve watched the movie itself might leave some of us believing that every actually funny scene from the movie had been compressed into a 60-second trailer. However, some plaintiffs’ lawyers in California have succeeded at least initially in identifying a movie trailer claim that may not be a puff.

The movie “Yesterday” was released in 2019 and revolves around a person who wakes up one day to find out that he is the only person in the world who remembers the Beatles. The cast at the time was relatively unknown with the exception of one actress, Ana de Armas, who had roles in movies such as “Knives Out” and “No Time to Die.” In the movie, de Armas was a secondary love interest to the main character. Alas, three was a crowd when it came to love interests, and de Armas’ scenes were cut from the film. The trailer, however, was created before the final edits were made to the movie and so included de Armas’ character.

Enter now the aggrieved plaintiff, who purports to be a big de Armas fan, saw her in the movie trailer, and paid $3.99 to watch the movie only to discover, sadly, that de Armas was nowhere to be seen. Fortunately, a class action firm rode to the rescue to help plaintiff in his distress by filing a lawsuit against the movie’s distributor, Universal City Studios.

The studio sought to have the case dismissed, arguing that a movie trailer was an “artistic, expressive work that tells a story and is “non-commercial speech. The judge, however, rejected this argument, finding that while the creation of a movie trailer involves some creativity, “at its core, a trailer is an advertisement designed to sell a movie by providing consumers with a preview.” The studio also argued that permitting the case to proceed would open the door to an endless stream of litigation anytime a moviegoer thought that a trailer misrepresented the genre of the film or that there were any other multiple other purported “mismatches” between the trailer and the film itself. The judge, however, differentiated between disappointments that might be subjective in nature, such as the genre of a movie, and objective criteria such as whether an actress or scene that is in a trailer appears in the movie itself.

The studio also attempted to defend its actions by arguing that movie trailers contain scenes that don’t make it to the finished product all the time, citing the movie “Jurassic Park,” which had a trailer made up entirely of footage that was not in the movie. That argument also fell flat, at least on a motion to dismiss, but perhaps down the road could lead to an argument that no reasonable consumer would believe that everything in a movie trailer would be in the final version of the movie, given how early trailers need to be made and the editing schedule for many movie releases.

Shout out to our engaged reader, Christopher Baker, for finding the trailer clip:

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There is likely a lot more plot and character development to come in this story, but no doubt studios will be eyeing their movie trailers a bit more critically as a result of this decision.

Is It Just a Puff?