On 7 Sep 2008 at 11:47, Fastfission fastfission@gmail.com wrote:
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
This recent case might be of some relevance:
http://uncivilsociety.org/siegel_superman_032608.pdf
The case, pertaining to the exercise of copyright termination rights by heirs to one of the creators of Superman, included as one of the things in dispute the matter of exactly what date the first Superman- related copyright went into effect, which would affect whether the attempted termination was done in a timely manner based on deadlines that are calculated from the initial publication date. At issue here was whether promotional ads for Action Comics #1 that showed its cover (with Superman lifting up a car), which came out a month or so before the actual comic, constituted publication of that cover image and concept, starting the clock running on its copyright. [See discussion starting on page 26 of this decision.]
It wasn't asserted by either side that this made the promo ad in the public domain, since the other comics in which that ad appeared had valid copyright notices of their own, and have been renewed. It did, however, affect the ability of heirs of the creator to assert copyright termination if not done in time for the earlier deadline of that copyright relative to that of the Action #1 issue itself.
The judge ultimately ruled [p. 40] that the earlier publication of the ad, as a "derivative work" of the (as of yet unpublished) first comic book story and cover of Superman, was indeed separately copyrightable as of an earlier publication date from the comic itself, but that this still didn't invalidate the copyright termination for the comic, since the earlier ad merely showed a black- and-white image of Superman with no indication of any of his specific characteristics other than that he was strong enough to lift a car. Thus, "The Court thus concludes that defendants may continue to exploit the image of a person with extraordinary strength who wears a black and white leotard and cape. What remains of the Siegel and Shuster´s Superman copyright that is still subject to termination (and, of course, what defendants truly seek) is the entire storyline from Action Comics, Vol. 1, Superman´s distinctive blue leotard (complete with its inverted triangular crest across the chest with a red "S" on a yellow background), a red cape and boots, and his superhuman ability to leap tall buildings, repel bullets, and run faster than a locomotive, none of which is apparent from the announcement."
This ruling is possibly precedent for a claim that movie trailers have a separate copyrightable existence dating to their first release (usually preceding the movie itself), and might be capable of having their copyright lapse or fail to be properly secured by the technicalities of copyright law, which, if it happened, would affect the use of anything specifically in the trailer (but not aspects of the movie itself not shown in the trailer).