[WikiEN-l] Are movie trailers "free enough" for Commons?

[Fastfission]

I know that this is a Commons question but in my experience the Commons list
doesn't have as many people who are familiar with or care about US copyright
law. So I'm posting it here.
There are a lot of stills from US movie trailers on Commons.

Example:
http://commons.wikimedia.org/wiki/Image:Gentlemen_Prefer_Blondes_Movie_Trailer_Screenshot_(34).jpg

The movies they are from are in almost every case still copyrighted (you can
look up the renewal records pretty easily).

The entire rationale that the trailers are in the public domain comes from
the dubious argument on this website that the trailers constitute entirely
separate copyrights since they are "published first" and weren't explicitly
copyrighted or renewed: http://www.sabucat.com/?pg=copyright

Personally I find this pretty dodgy reasoning (and not written in a way
which gives me any faith that said site actually got solid legal advice on
the issue).

There is no case law on the subject that I have been able to find (though my
effort in such was not great -- a few Google searches turned up nothing
obvious, nothing that was being cited by others). This seems like definitely
murky area and certainly not clear cut. I would be surprised, personally, if
a US judge did not see the trailer as being a derivative work of the film
itself, even if it is exhibited before the films themselves.

Some back-and-forth on a media list serv seems to support at least the point
of view that this is pretty murky legal ground:
http://palimpsest.stanford.edu/byform/mailing-lists/amia-l/2008/07/msg00124.html

Do we think this reasoning is sound enough for the "freedom" of Commons (and
Wikipedia)? Personally I think not. I am not a lawyer, but it's clear to me
that without any case law on the subject we are probably not justified in
saying that these are in the public domain.

And no, I'm not really worried about Commons or Wikipedia getting sued over
it (no more than I am worried about getting sued over fair use screenshots).
But Wikimedia getting sued is obviously not the border of "free". I'm not
being copyright paranoid -- I just don't want Commons (and by extension,
Wikipedia) advertising certain things as PD if they might not be.

If I were actually staking any financial resources into this particular
question, I'd definitely need to consult a lawyer first. And if that's the
case, then it's probably not free enough for Commons. So goes my reasoning.

I've nominated one of the screenshots (the one I linked to above) for
deletion on Commons as being non-free (or at least, that we have
insufficient reason to assert freedom). Feel free to participate in that,
either way. If it does get deleted, though, there are at least 350 other
such images on Commons (do a site-specific search for the sabucat page).

I'm not going to be spending any more time on this particular issue -- it's
just something I noticed and thought I'd put out there. And I think it's an
area where some people who are relatively well-informed on US copyright law
could be useful.

FF