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This topic comprises 2 pages: 1 2
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Topic: Information Needed on legality issue
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Frank Angel
Film God
Posts: 5305
From: Brooklyn NY USA
Registered: Dec 1999
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posted 09-23-2010 11:41 PM
As already mentioned, auctioning, selling or renting 35mm trailers has nothing to do with copyright protection of the material on those trailers. The copyright law protects from COPYING. And EXHIBITION, not the transfer of the material carrying that copyright material. The issue here is only one of chain of ownership of the physical entity -- the film itself; it has no more to do with copyright than it would if the film were a roll of unexposed leader. Just as copyright material such as the images from a feature film in a newspaper ad in no way gives the copyright owner of that image any claim over the newspaper from being sold or (if there were such a market) rented or auctioned on ebay.
The question here is not one of copyright, but one of the chain of OWNERSHIP, and that is regulated by a number of property statues which may be different from state to state and even from municipality to municipality, but in general the key issue is that of abandonment of property. In most states, if property is abandoned (the owner throws an item in the garbage, for example), then ownership is lost. If for some reason there is a question of abandonment -- a bicycle is left in a public park for example -- the owner would have to show intent by taking some reasonable action to recover the item or show his intent is to retain ownership. If he knows who took that bike, he would ask to have it returned and upon a dispute, would call the police; he would make it clear he never intended to abandon that property.
The industry's long-term established practice makes it quite clear, and this would certainly come into play, that studios never intend to retrieve ownership of trailers. Unlike film prints where they do retrieve them and have them band-sawed to effectively prevent ownership from transferring to other parties, with trailers, the pattern has long been established that these items are routinely discarded with rarely any action taken by the owners to retrieve their property. Historically, these items are abandoned; the owners have let theatres discard them as they will without requests to have them returned or instructions as to what else should be done with them. It is well-established and everyone knows that for decades theatre routinely dump trailers in the garbage to be carted off to local dumps.
At this stage of the game, for studios to claim they have all along wanted to retain ownership would be a very hard case to win. For them to claim the items were stolen would be even more ludicrous. Did any studio ever make a report to any police authority naming the property had been stolen? In terms of ownership, it is quite clear that trailers, which after all are advertisements, are trashed after use. On the rare occasion there have been cases where a studio has demanded trailers be returned for example, Fox/Lucas's required the STAR WARS trailers be returned and then took definitive action to retrieve them if they were not. This simply shows by contrast that that was the exception where normally the studios did not take any action regarding having trailers returned, knowing full well that they were being trashed and that effectively is property abandonment.
So since the demise of National Screen Service, the industry commonly treats trailers as nothing other than disposables. And the protection afforded by the copyright law cannot be invoked as a means of impacting ownership rights.
This by no means will prevent copyright owners from making whatever claims they wish, and in fact, it is such unfounded claims by the studios that prompted ebay to make the rule against auctions or sales of 35mm films or trailers. It was quite obvious at the time that ebay simply capitulated to the noise some legal department at Universal made about a trailer auction, not because they studio had any legitimate claim via copyright to stop sales, but rather ebay just didn't want to hassle with such entanglements with a huge corporate entity.
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