Reel to Real: The Commercial Complexities of the Film Trailer

For more than a century, it has been an essential part of cinema-going.

As the lights go down and before audiences are allowed to enjoy the main feature, movie companies make their abbreviated pitches for repeat business.

The film trailer is intended to provide a short, compelling and utterly irresistible summary of a forthcoming presentation.

Many of us have fallen prey, making a mental note to return to our favourite arthouse theatres or multiplexes to watch the next big thing on the big screen.

We might regard them much as the producers do, whetting our appetites and keeping us coming back for more.

However, there are some in the plush seats, armed with popcorn and fizzy drinks for whom the film trailer can be something altogether more serious.

The Times has recently reported that two movie fans in the United States have been given permission to sue the media company Universal after each rented the film 'Yesterday' on a film streaming service on the strength of its trailer and - specifically - the presence of the Cuban actress Ana de Armas (https://www.thetimes.co.uk/article/6e45fdfe-81d9-11ed-ab78-11b70ed96428?shareToken=6ae549d275e558d906af6ef1e536c0e1).

In the event, they were disappointed to discover that she didn't actually appear in the full-length film, which was directed by Oscar winner Danny Boyle.

As a result, they have embarked on a lawsuit against Universal, accusing it of "deceptive marketing" and seeking $5 million in damages for themselves and others who might have ordered the movie only to feel similarly let down.

Universal had sought to have the case thrown out, in much the same way as the producers of Ryan Gosling's 2011 hit 'Drive' blocked a lawsuit from a woman who wanted compensation because, well, the movie didn't contain enough driving for her taste.

The matter will now proceed, though, because US District Judge Stephen Wilson ruled that trailers are in fact commercial speech and subject to laws around honest advertising.

Whilst the case and the glamour of Hollywood may seem a world away from the day-to-day realities of business on this side of the Atlantic, it actually provides a useful reminder, especially for those firms relying on any form of promotion to increase sales of their products.

It is a lesson which isn't just confined to expensive advertisements starring celebrities or snippets on the more instantaneous and flexible social media to snare customers.

The issue of proper representation is something which relates to all forms of sales activity.

In addition to making sure that promotional material neither misleads nor confuses, it is important to ensure that salesmen and women who might be interacting directly with customers are not over-selling.

If you don't get this right, you are potentially leaving your business at risk of claims from individuals or organisations who believe that they did not receive what they thought they were purchasing.

How products might be represented has, in the UK, been a hot topic for almost 70 years and a regular feature of my work on behalf of leading food, drink and retail brands over more than three decades.

When television advertising first appeared in the mid-1950s, it was governed by legislation but practitioners successfully argued that there was a need for rules to deal with non-broadcast media - such as newspapers, billboards and the like - too.

What resulted was the British Code of Advertising Practice and the creation of the Advertising Standards Authority (ASA) as the relevant regulatory body.

The ASA's clear, core principle is to ensure that advertising of all sorts is "legal, decent, honest and truthful" (https://www.asa.org.uk/type/non_broadcast/code_section/01.html#:~:text=Principle,the%20letter%2C%20of%20the%20Code.).

Over the years, it has become successively more exacting - one reason why adverts can no longer attribute physical vigour or attractiveness to a particular cigarette, beer or after-shave as was commonly the case as recently as the 1970s.

Nowadays, the ASA has to be especially alert when it comes to the threats posed by social media.

Twelve months ago, it subjected six influencers to tougher sanctions for repeatedly breaking the rules (https://www.asa.org.uk/news/asa-escalates-sanctions-against-influencers-who-repeatedly-break-the-rules.html).

The risk for businesses lies not only in what any words or even visuals used actually say but how they might be interpreted by customers or consumers and how those individuals might have been influenced. Did they take to heart what they read, saw or heard in your sales or advertising collateral?

Another important thing to consider is that there is limited scope for challenging the adjudications of the ASA. It deliberates on complaints, makes a decision and - if appropriate - imposes sanctions which could even lead to prosecution.

The only safe position to adopt, therefore, is to avoid making any statement in the first place - be it explicit or implied - which might be misleading, confusing or simply incorrect.

Doing so will not only keep you safe from a potential ASA sanction but should remove the risk of your organisation being accused of misrepresentation.

It's essential to ask whether statements might be misinterpreted and, if there's even the slightest chance that they would, change the wording to make them safer.