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

[Kevin Wong]

Well, Wikipedia is for the copyrighted- fair-use stuff. Commons needs to be
as free as possible in that you can do anything you want with that media.

On Sun, Sep 7, 2008 at 8:47 AM, Fastfission <fastfission at gmail.com> wrote:

> 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<http://commons.wikimedia.org/wiki/Image:Gentlemen_Prefer_Blondes_Movie_Trailer_Screenshot_%2834%29.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
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