New Ruling Declares Studios Potentially Liable For 'Deceptive' Movie Trailers

We're ending 2022 with a bunch of industry-rocking news, like James Gunn and Peter Safran's total restructure of Warner Bros.' DC universe. But one bit of news that isn't as splashy as Henry Cavill getting the boot as Superman could have wider implications for the industry on the whole. That's a recent decision by a federal judge that could make studios liable for misleading movie trailers.

The drama started when two Ana de Armas fans, Conor Woulfe and Peter Michael Rosza, decided to watch a movie called "Yesterday," about an Average Joe musician who wakes up in a world where The Beatles never existed as a band, but has all the knowledge of their world-changing musical library. The movie didn't have a huge impact on audiences or critics, but its legacy may become tied to a meteoric shift in how films are advertised in the future.

You see, Ana de Armas didn't make the final cut of the movie. She was part of a subplot that was cut after test audiences rejected it. The problem is that her face is in the trailer, and the two fans felt their $3.99 rental fee was a rip-off, so naturally they sued Universal Pictures for $5 million.

U.S. District Judge Stephen Wilson ruled in favor of the plaintiff's claims that the trailer fell under false advertising laws, despite an argument from Universal's lawyers that trailers, like movies, are "artistic, expressive work" and protected under the First Amendment as "non-commercial speech." The judge did not agree, stating that while there is creative artistry at work in movie trailers, their primary job is to advertise.

Basically, the ruling says that it is possible to sue movie studios if they include scenes and/or actors in the trailer that don't appear in the movie. That doesn't mean the lawsuits would succeed in court, but the door is now open, and that's very bad news for movie studios.

On the one hand, the judge isn't wrong about a trailer's primary job being to sell the movie. It's hard to argue against that decision, but a movie trailer isn't as cut and dry as, say, a furniture store advertising one brand of sofa for one price and never having it actually available in store. Trailers are often released well before the final film is finished, which is why you'll see scenes that don't make the cut or different effects shots. The necessity to advertise a movie with a long lead time is going to mean there's always a risk that moments used in the trailer will not end up in the finished film.

Is that fair to audiences? That's up for debate, but it is what it is. Another thing to consider is that some studios use trailers to intentionally mislead the audience. Sometimes that's done in subtle ways to surprise the audience with a different tone or plot twist, and sometimes it's done as a blatant lie (looking at you, Marvel).

One of the best examples of this is the above image from the trailer for "Avengers: Infinity War," in which we see a shot that not only didn't end up in the movie, it inserted characters that aren't even in the scene as a way to throw off the frame-by-frame YouTubers from ruining big plot decisions. There's a version of this in the "Spider-Man: No Way Home" trailer as well, where they digitally removed an extra Spider-Man or two from a shot to retain that surprise for the theater. 

This happens a lot in Marvel trailers.

This ruling could make the "Avengers: Infinity War" trailer a suable offense. "The Hulk wasn't in this scene, give me $5 million!" 

For the record, I don't think it's a bad thing to force studios to be a little less sneaky with their trailers, but sometimes playing with audience expectation is a welcome departure from the usual way of showing 95% of the movie in a quick 3-minute burst. 

Some of my favorite trailers of all time are teaser trailers that feature footage shot just for the teaser. That was more common in my youth than it is today, but a good teaser trailer lets you know a movie is coming and gives a good idea of what the tone will be without spoiling a damn thing.

Take this "Terminator 2" trailer, for example:

How great is that? And nothing in it is in the actual movie. The first Sam Raimi "Spider-Man" teaser is another prime example. That one ended up pulled from theaters because it featured the World Trade Center and was released just a few months before the tragic events of 9/11. Teasers like those could go the way of the dodo under this ruling.

There is some talk about studios being able to protect themselves with a simple disclaimer at the end of their trailers, like "this trailer does not represent the final product." Video games have done that for years with their trailers, usually with a text screen warning that gameplay isn't final. 

That's not ideal (who wants to have a list of disclaimers while watching a trailer?), but I'd rather see studios implement something like that to cover their butts, legally, and still give the more creative trailer editors license to go above and beyond the typical "ruin the movie" approach that the lazier marketing departments have.

This lawsuit might still die on the vine, but with this ruling the path is open for a big change in how studios are legally allowed to market their wares.