Ana de No Mas: Studios May Face Legal Backlash for Leaving Fan Favorites on the Cutting Room Floor

In late December 2022, District Court Judge Stephen Wilson of the Central District of California, issued a limited order denying Universal Studio’s motion to dismiss in a lawsuit brought by two fans of actress Ana de Armas.

When Universal cut an early trailer for the film, “Yesterday,” they probably didn’t foresee the legal maelstrom that it would create. The film portrays a young man who, after suffering a head injury in a traffic accident, ends up being the only person who remembers the Beatles’ music. The trailer for the film depicts a secondary love interest, played by Ana de Armas, who meets the lead actor during a talk show interview. However, Universal determined, after focus group reviews of the movie, to remove the secondary love interest prior to final cut of the film.

According to the initial complaint, Conor Woulfe and Peter Michael Rosza, two fans of Ana de Armas, spent money to rent “Yesterday” based on the trailer’s indication that de Armas was featured in the movie. Feeling deceived, the Plaintiffs filed suit against Universal claiming deceptive marketing practices. The complaint, filed earlier in 2022, alleges that they would not have rented the film had they known that De Armas’ role had been cut completely. They are alleging several claims against Universal, including violations of unfair competition laws, false advertising, unjust enrichment, breach of implied warranty, breach of the Uniform Commercial Code, and violations of consumer protection laws, in both California and Maryland. In response, Universal filed motions asserting that California’s Anti-SLAPP statute was applicable, and, therefore, should result in dismissal of the complaint.

Anti-SLAPP

Under California law, Anti-SLAPP lawsuits (strategic lawsuits against public participation) are considered lawsuits that “masquerade as ordinary suits but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so.”[1] Judge Wilson reviewed the two prongs of the Anti-SLAPP statute to determine (1) whether this cause of action has arisen out of Universal’s right of petition or free speech in connection with a public issue. Judge Wilson, after agreeing that the cause of action did arise out of that free speech connection, next examined (2) whether the fans have established that there is a probability that they will prevail on the claims.

1. Arising out of Free Speech in Connection with a Public Issue:

Universal argued that their actions would fall under the “catchall” provision of the 1^st prong, which requires Universal to “show that they are engaged in (1) furtherance of the right of free speech, and (2) in connection with an issue of public interest.”[2] This Order states that the creation and release of Yesterday is an exercise of free speech, and that the trailer furthers this exercise of free speech by increasing the public engagement by creating public interest in the movie.

An important note for studios under this order is that trailers can be considered pertinent to issues of public interest. Given the fame of both the Beatles and Ana de Armas, the creation and dissemination of Yesterday creates a public interest, as evidenced by the film’s reviews, ratings, and even an interview with the writer explaining why De Armas was no longer in the film.

1. Fans’ Likelihood of Success:

Judge Wilson stated that “given the allegations that viewers of movie trailers expect to see the featured actors in the movie […] the Court cannot say as a matter of law that [the] Plaintiff’s misrepresentation claims are implausible.”[3]

The crux of this likelihood, per the Court, boils down to whether Universal made some actionable misrepresentation of the movie by including a scene in the trailer that ultimately did not appear in the movie. Looking to the UCL, FAL, and the CLRA, which are often reviewed in tandem under the reasonable consumer standard, the Court is looking at whether an actionable misrepresentation is, ‘likely to deceive the consumer.’[4] Even though Universal did not expressly state that Ana de Armas was going to be in the film, the Court holds that an implied inclusion may be enough to be viewed as, “a specific measurable claim, capable of being proved false or of being proved false or of being reasonably interpreted as a statement of objective fact.”[5] The Court states that, “given the allegations that viewers of movie trailers expect to see the featured actors in the movie […] the Court cannot say as a matter of law that Plaintiff’s misrepresentation claims are implausible.”[6] That being said, Judge Wilson was quick to establish that, even though such misrepresentation claims may not be implausible, this Court’s holding is  limited, “as to whether an actress or scene is in the movie, and nothing else.”[7]

Conclusion:

The court considered the Plaintiffs’ individual claims, allowing the case to proceed relative to three specific claims, but granting the motion to dismiss regarding the other half of the claims. The claims that Universal (1) violated the California Unfair Competition Law, (2) violated the California False Advertising Law, and (3) received unjust enrichment will proceed to discovery. Suits like this show the ardent nature of fans to see their preferred actors on screen, and studios may have to implement additional legal reviews before leaving possible fan favorites on the cutting room floor if the Plaintiffs prove successful in this suit.

[1]Case 2:22-cv—00459-SVW-AGR, ECF No. 83 Page ID. 4 Filed 12/20/22 Page 4 of 32

[2] Case 2:22-cv—00459-SVW-AGR, ECF No. 83 Page ID. 7 Filed 12/20/22 Page 7 of 32

[3] Case 2:22-cv—00459-SVW-AGR, ECF No. 83 Page ID. 14 Filed 12/20/22 Page 14 of 32

[4] Case 2:22-cv—00459-SVW-AGR, ECF No. 83 Page ID. 10 Filed 12/20/22 Page 10 of 32; Lavie v. Procter & Gamble Co., 105 Cal. App. 4^th 496, 508 (2003)

[5] Case 2:22-cv—00459-SVW-AGR, ECF No. 83 Page ID. 10 Filed 12/20/22 Page 10 of 32; Vitt v. Apple Computer, Inc., 469 Fed.Appx. 605, 607 (9^th Cir. 2012)

[6] Case 2:22-cv—00459-SVW-AGR, ECF No. 83 Page ID. 14 Filed 12/20/22 Page 14 of 32

[7] Case 2:22-cv—00459-SVW-AGR, ECF No. 83 Page ID. 14 Filed 12/20/22 Page 14 of 32