Two fans of actress Ana de Armas filed a lawsuit in January after renting the 2019 film “Yesterday.” The plaintiffs, Conor Woulfe and Peter Michael Rosza, filed the suit after they rented the film for $3.99 on Amazon Prime. Their issue is, while de Armas is featured in the trailer, she does not appear in the film. Their argument is the trailer misrepresents the film, and they would not have rented it if they had known she wasn’t in it.
“Yesterday,” revolves around a young man who wakes up after a bicycle crash, only to find out somehow no one on earth seems to remember The Beatles. So he does what any reasonable person would do; performs their songs himself and become rich and famous.
Originally, de Armas appeared “Yesterday” as part of a love triangle between her, protagonist Himesh Patel, and Lily James. The pair were to meet on James Corden‘s talk show where Patel serenade her with the song “Something.” The issue is, test audiences hated Patel stepping out on his main love interest, James so de Armas was cut. A decision that screenwriter Richard Curtis described as a “very traumatic cut.” But she is still featured in the trailer.
Now to be clear this lawsuit isn’t just about some disappointed fans seeking $5 million against the films distributor, Universal Pictures. It is about whether or not trailers are considered free or commercial speech. Which, legally speaking, is a huge distinction between what studios can and cannot put in them. Universal is arguing trailers are “artistic, expressive work.” They should be treated are three-minute stories that are more to convey the themes and ideas of a movie.
“What is obvious about trailers generally and the Yesterday trailer in particular: they are expressive works in their own right and may not be relegated to a class of ‘purely commercial’ speech that receives watered-down First Amendment protection,” lawyers for Universal said in a motion. They also used a “ Jurassic Park” trailer that was composed of footage that never appeared in the film as an example.
California US district judge Stephen Wilson disagrees with this argument and would not allow the case to be thrown out like Universal wants. “Universal is correct that trailers involve some creativity and editorial discretion, but this creativity does not outweigh the commercial nature of a trailer,” Wilson wrote in the ruling. “At its core, a trailer is an advertisement designed to sell a movie by providing consumers with a preview of the movie.”
It’s not that de Armas’ role was cut down and she wasn’t a lead character. She straight-up isn’t even in “Yesterday.” If we are to view a trailer as an advertisement for a film, as most people would, we were shown a character that doesn’t even exist. Not just a scene or some footage like the “Jurassic Park” trailer. This is a whole person and subplot that just flat-out don’t exist in the film.
Due to Wilson’s ruling, Woulfe and Rosza’s lawsuit will proceed to discovery and a motion for class certification. No matter the outcome this case, defining movie trailers as either free or commercial speech will have a serious impact on what studios can and cannot do from now on.
You can see one of the trailers in question for yourself below: