Frustrated at not seeing Ana de Armas in Danny Boyle’s “Yesterday” movie that they had rented, even though she is present in the trailer, two fans of the actress have just filed a complaint against Universal .
In the country where legal cases are a real lucrative business for armies of lawyers, it happens from time to time on the Hollywood office of the rather astonishing complaints. Like the one just filed by two fans of Ana de Armas against Universal, reported by variety.
The reason ? Having rented the film Yesterday by Danny Boyle on Amazon Prime, they did not appreciate the fact that the actress was cut during the editing of the film, even though she appears in the trailer. The screenwriter of the film, Richard Curtis, had also regretted this cut in the editing.
“It was a very traumatic cut, because she was brilliant in it” had he dropped at the site Cinemablend, in an interview published in 2019. “It’s one of those things that happens in our favorite scenes in a movie, but we had to cut it for the good of the whole.”
Below is the trailer for the film…
Still, the two plaintiffs, Conor Woulfe, 38 and from Maryland and Peter Michael Rosza, 44, from San Diego, are therefore attacking the Major for deception, and are asking for 5 million dollars in damages estimated.
Drive, the previous
This complaint is reminiscent of the one filed in 2011 by an American woman against District Film, the distributor of the film Drive by Nicolas Winding Refn.
She too had felt that the trailer for the film had hinted at a work in the vein of a Fast & Furious. Clearly, it lacked for her pursuits, stunts galore and hyper-tuned cars… “Drive shares very few similarities with car chases seen in an action movie, […] and there are few driving scenes” specified the complaint.
As long as charging the mule, the complaint further asserted that Drive “contains defamatory racism against members of the Jewish community, thereby promoting violence against the Jewish community”… The interested party even tried to beat the recall so that her complaint turns into Class Action, without success.
Can a trailer be false advertising?
Is this type of complaint abusive? Founded? Is this specific to the United States, or is the same thing possible in France? Can a movie trailer become false advertising?
We contacted two lawyers for advice. Elisabeth Mâche, from the firm Lawyer, specialized in the various fields of creation and in particular in copyright and digital law; as well as Frédéric Calinaud, founder of firm of the same name in 2013. Cross interviews.
Elisabeth Marchac: In France, there has not yet been a case of complaint on this subject. It is a very Anglo-Saxon approach for the moment to make an appeal for “non satisfaction” or “no promise kept”. For the moment, the American courts have not ruled that a trailer falls within the scope of the application of the American consumer code.
Including a mention of “non-contractual images” is complicated: a trailer is considered a cinematographic work and a self-promotion tool, and not an advertising tool. It does not qualify as an advertising work in France. In fact, we escape the recourse of misleading or unfair advertising.
The definition of the trailer and the regime of the trailer is not provided for by the cinema code. There is no strict definition. It’s a gray area. The CNC is competent in terms of classification vis-à-vis the public to which the trailer is addressed. But he does not have the competence to judge the quality of the content and whether the images correspond to the film.
In France, the question arises more on copyright than on the public interest. The legal angle that would have interested me is that of a filmmaker who would bring an action for infringement of his moral rights or non-respect of his work vis-à-vis a trailer. We would be there on a problem of denaturation of an original work. But for the moment, there has been no case law.
Frederic Calinaud : There is also a difference between choosing the images that best sell a film or an atmosphere, trying to pass off a film for what it is not in order to sell tickets, and trying to voluntarily confuse the viewer for the to lead on false tracks in terms of scenario. Which is the case with Avengers.
There is a very fine line between the desire to sell and the approach of not spoiling or surprising the viewer. Legally, it is complicated to determine. The Avengers case is pure marketing. We are addressing a very informed public who spend hours deciphering, decoding and commenting on each image.
This approach to deciphering trailers is something quite recent. And therefore to find images that are not in the final film, or that are modified. But if we go back in the history of cinema, a lot of classic trailers probably have the same concern. The same goes for the operating photos that were displayed in front of cinemas at the time. And no one cried foul, no one felt cheated not to find a specific image in the film.
The phenomenon is especially exacerbated by the web, by the fact that a blockbuster has three or four trailers, not counting the international trailers… Perhaps this visual overbidding has generated an overbidding in frustration.
Elisabeth Marchac: The question in the end is who would benefit from acting and against whom to turn. Which is complex, even more so when you know that trailers vary from country to country in terms of content and duration. We must also add to this that not everyone understands a film in the same way…
Indicating “non-contractual images” therefore distorts the very notion of a work. It is characteristic of a work to leave room for the imagination: enclosing a trailer in contractual clauses would risk contractualizing all the stages of creation. I don’t think it’s the solution to legislate everything. Especially when it comes to artwork.