When someone says "I don't want to get sued", they're asking for legal advice. So I'll give you the same answer I give everyone who asks for legal advice on HTF: Consult a lawyer. You can't get reliable legal advice over the internet. There's no attorney-client relationship, and the people giving you the advice have no responsibility if it turns out to be wrong. It's worth exactly what you pay for it.

BTW, I'm an attorney, and if I had a nickel for every time a client told me that they'd "read somewhere" about something that was totally wrong, I'd probably have more money than I've collected in fees. 

I agree with Michael.  Consult real legal advice first.  The legalities of the trailer situation are complicated.

There's "public domain," and then there's "liberal license."  I'd almost guarantee that trailers are not Public Domain -- nothing out of any movie studio hasn't been copyrighted to within an inch of it's life.  However, the licensing rules for use of that material may be very free and open, provided you don't take the trailers and re-edit them.  (Unless you can legitimately claim parody, but you're really getting far afield there.)

You might also consider asking (discreetly, of course) some of the studios in question. 

Leo

Alot of mis-information in this thread - It boils down to this -

In the eyes of copyright law - a Movie Trailer is consitered a seperate work and would require a seperate copyright on the trailer itself.  Most studios did not copyright their trailers.

Trailers for movies released before 1964 are in the Public Domain because they were never separately copyrighted. The law at the time granted the owner 28 years to file a copyright registration. 1963 + 28 = 1991

Clearly, time has run out to register this material. Some might argue that since the trailers frequently contain the same material that's in the movie, and the movie is presumably copyrighted, that this would cover the trailer as well. However, the trailer is published (run in a theater) before the movie itself is published. Thus, the trailer requires a separate copyright, and the scenes contained in the trailer are in Public Domain.

In addition,trailers between 1964 and 1989 published WITHOUT a copyright notice are also in the public domain.

The following case sheds some interesting light on the subject.

http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/01-07249.PDF

That's an odd statement, considering that two of the three responses provide no information and simply encourage the OP to consult counsel. Where is the misinformation there?

Out of curiosity, where are you admitted to practice?



You seem to be conflating "copyright" with "registration". They aren't the same.


I don't see how, since the opinion does not address the issue of copyright in a trailer. Indeed, the court makes a point of noting that "there is no allegation or evidence that there is any copyright in the trailer itself"  (slip op. at 6), thereby removing any such issue from the case.

I think Michael has hinted strongly, from his position as a lawyer, that it is dangerous and unhelpful for anyone to provide answers here, because they might encourage the OP to avoid seeking legal advice from a professional in the real world. So um, maybe don't.

I'm not a lawer, but have done some research in the subject. (Should have used better footnotes in my last post) 

My research came from several places, first from SABUCAT PRODUCTIONS. Well known film archivists. While they have retired recently,their archive web pages can be accesed here -

http://web.archive.org/web/20070711171318/www.sabucat.com/?pg=copyright

http://web.archive.org/web/20070711171225/www.sabucat.com/?pg=fairuse

As for my statement with regards to ,trailers between 1964 and 1989 published WITHOUT a copyright notice are also in the public domain. In additions to the pre-1963 subject, I refer to

http://www.publicdomainsherpa.com/copyright-symbol.html

Works published before January 1, 1978, are governed by the previous copyright law (the 1909 copyright act). Under the 1909 Act (which covers works published from July 1, 1909 through December 31, 1977), copyright generally came into being upon publication with notice. If a work was published under the copyright owner’s authority without a proper notice of copyright, all copyright protection for that work was permanently lost in the United States.

Most trailers in the past have been 'published' without proper notice - studios didn''t see the the need or value to putting the notice,or even copyrighting the trailers as indivdual works. (They viewed it as advertising material that was transent and short-lived)

Under the current copyright law (which governs works published on or after January 1, 1978), copyright arises automatically, as soon as the work is fixed in a tangible medium of expression ... but notice was still required until March 1, 1989. If a work was published without a copyright notice between January 1, 1978 and March 1, 1989, the copyright was still valid if: the notice was missing from a “relatively small number” of copies; or within 5 years after discovering the problem, the copyright owner registered the work with the Copyright Office and made “reasonable efforts” to add the notice to new copies; or the notice was omitted in violation of a written agreement stating that the notice had to be included on publicly distributed copies of the work 
 

Referring back to HOFFHEINZ vs. A&E, while the court did not address the copyright status of the trailer in question, it does identify it as a separate work. As a separate work, it requires a separate copyright from the film itself.  A trailer is published before the film is, and while shares footage with the film work, it in itself is a different work.

 

Edited by DeWilson - 9/26/09 at 5:14pm

I note that you have failed to identify any "misinformation" provided in previous posts.

The Sherpa website's description of the situation should begin to convey how complicated the situation is (and Sherpa glosses over questions that could be raised as to what constitutes "publication" in the case of a trailer, see U.S. Copyright Office Circular 3, at 2 (2008)). But let's get to the bottom line. Since you rely so heavily on the Sherpa website, consider the disclaimer provided there:
 

The last paragraph brings us back to where we started.

One other thing:


The status of a trailer as a "separate work" was never in question. Indeed, the OP's initial inquiry assumed that it's a separate work. So the Hoffheinz case has zero applicability to the OP's issue.

My Lord, you ARE a lawyer, aren't you.  It is to laugh. 

Even Sabucat would tell you that there are many exceptions to the rules.  Many WB trailers from the early '30s, for example, were renewed.  So were many Fox trailers.  So it's not as simple as "everything before '64 is PD".  That's a generalization.

Bottom line is that if OP is going to go about doing it on the up an up, he should consult a lawyer.  In this case, it might be as simple as talking to the station's lawyers about this, or getting the trailers from a third party that specializes in such stock footage.

Leo's post (#4) " I'd almost guarantee that trailers are not Public Domain" is a bit of mis-information :) (Ok,perhaps it's more of an option than misinformation)

Thank you for the link for the U.S. Copyright Office Circular 3. (I knew there was something I was looking for...) 

I think we can safely say that a trailer is published,  Taking in account the following -

The 1976 Copyright Act defines publication as “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” An offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display also constitutes publication.

"...or by rental,lease or lending"  and "An offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display also constitutes publication..."  comes into play here.  The studios supplied trailers to the theatrical distributors/film exchanges who then distributed them the theater chains and operators. (or directly to the theaters) Who then exhibt them to the public. These trailers after being used were supposed to be returned to the film distributors/exchanges or destroyed if beyond reuse. (But still trailers manage to escape into collectors' hands) If cost were involved, we could say it was a 'lease' or 'rental" and if no costs were involve it would be  'lending'. "...

The following do not constitute publication: printing or other reproduction of copies, performing or displaying a work publicly, or sending copies to the Copyright Office.

We've already established that trailers are published as they are distributed and exhibited.  It's just a matter of determining what the status is - public domain by lack of notice, public domain by lack of registration/renewal or NOT in the public domain by having the proper notice and registration/renewal.  

Easy to determine between viewing the trailer and looking for any copyright notice in the places it's supposed to be (according to Circular 3.), If it's missing a notice, it's clearly in the public domain due to a missing notice. (pre-1989) If it has a notice (pre-1963) a look at Copyright office's THE CATALOG OF COPYRIGHT ENTRIES for the relevent years (for registration and any renewals) to confirm that information. (Copyright Office records for renewals after 1978 are available online.)  "Film Superlist: Motion Pictures in the U.S. Public Domain" series of reference books (usually found at major libraries) can also be of use.

Ok, I won't disagre about consulting a Lawyer. :)  BUT the information is out there clearly, (Even if I haven't been clear in expressing it.) to make it eaiser to have on hand one way or another. 

You know how it is, Billy. We all must do the things we do, even when it strikes some folks as unseemly.

Edited by Michael Reuben - 7/23/10 at 10:50am

 I'd make a slight amendment to the advice that other members are telling you about consulting a lawyer:  consult you station's lawyer, because they the station (or the corporation that owns it) are going to be the ones held primarily responsible if there is any copyright infringement.

I would of just used the trailers and given the studios credit at the end of the show.  It's basically free advertising, and I'm sure they have bigger fish to fry.  If Warners/Fox didn't sue that guy who made the Batman/Alien/Predator? Short film, I doubt they'd go after a public access show.  If they sent you a cease and desist letter, you could just apologize and promise not to do it again.

I'm of course not a lawyer and this is lousy advice, but really, it would be funny if they did go after you if you used them, they'd look a bit silly since you seem pretty harmless compared to the bootleggers fully stealing their product. 

lol

Love that, Russell!  :o)  Now THAT is truth in advertising!