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

[Daniel R. Tobias]

On 7 Sep 2008 at 11:47, Fastfission <fastfission at 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the ad, as a "derivative work" of the (as of yet unpublished) first 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).

-- 
== Dan ==
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