Film-Tech Forum ARCHIVE: Information Needed on legality issue

This is topic Information Needed on legality issue in forum Film Handlers' Forum at Film-Tech Forum ARCHIVE.

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Posted by Andrew Bangs (Member # 4938) on 09-23-2010, 02:45 PM:

Hey guys,
It has been a seriously long time since my last post but My life has had a few curves. For one I am no longer working at any type of theatre anymore. For that matter I am not working at all. But frankly I have funds saved up and am in no peril at this time. Just having fun.
I was surfing the web last night looking for a gift for my anniversary when I came upon a certain auction web site selling 35mm film trailers. Is this legal??? Most were old trailers but some were as recent as Avatar. If it is legal I might go back to my old boss and ask for a few to help with some side income or at the least tell him I will split the profits somehow. Honestly I don't see how this is right with copyright issues and the such but as their were aprox 1400 listings I just have to ask if anyone here knows of any concrete legal issues that would prevent the sale of these items.

Posted by Ron Lacheur (Member # 1126) on 09-23-2010, 03:50 PM:

Ebay did have a policy against selling Prints and Trailers a few years ago.

I believe it's illegal.

Posted by Todd McCracken (Member # 4718) on 09-23-2010, 04:08 PM:

Shucks I have bought 5 reel prints off Ebay, legal? I dunno.

Posted by Marco Giustini (Member # 4544) on 09-23-2010, 04:39 PM:

I've reported those auction to distributors several times. Never got any answers.
Reported to the auction website, they told me it is ok...

Posted by Martin McCaffery (Member # 37) on 09-23-2010, 04:45 PM:

I seem to recall having this discussion before. I think the legal out is - if the trailer or film was "disposed of" then it is ok to sell. Theoretically, the distrib could ask for it back, but they don't ever want it.

The distributor still owns the copy and exhibition right, so no public showings without paying the exhibition fee.

Posted by Mike Blakesley (Member # 26) on 09-23-2010, 04:55 PM:

The property is owned by the studios, but they don't want it, so unless you open a gigantic Trailers-R-Us store on eBay, the chances are you would never have a problem. (And if you did, just change the name of your store!) [Big Grin]

Posted by Caleb Johnstone-Cowan (Member # 3710) on 09-23-2010, 07:55 PM:

If staff are taking out trailers and other studio-owned material from their workplace to sell on eBay it would worry me what else they could be taking.

Posted by Steve Guttag (Member # 268) on 09-23-2010, 08:03 PM:

It is not a copyright issue...the copies were generated by the copyright holder.

The only issue is the property and possible public display of the copyrighted material. The property issue is who owns the film? How did it come to be in the seller's possession? (in a legal sense, are they selling stolen goods). Once the trailer is sold, legally or otherwise...then the presentation of the images on that trailer become another issue. Since trailers are designed to be shown to the general public anyway, it would be hard for the copyright holder to really restrict it...unlike the feature, the ticket one bought to see the movie did not come with any express contract to see any particular trailer...in a sense the copyright holder put it out there (heck, they show them for free on studio web sites now...so anyone could get it that way).

Steve

Posted by Jack Theakston (Member # 4484) on 09-23-2010, 09:18 PM:

It should also be pointed out, however, that to make a case, the studio in question has to prove that the item in question was stolen in the first place, which is trickier than it seems.

In all likelihood, however, given the enormous amount of trailers being sold on eBay on a daily basis, no one gives a crap.

Posted by James Westbrook (Member # 3690) on 09-23-2010, 09:55 PM:

Trailers that are not recycled by placing in the film cans are often trashed. The person placing the item on sale could claim he found it in the theater's dumpster. Granted, this does not entitle him to SELL it but might cover the accusation he stole the print.

Posted by Todd Cornwall (Member # 2205) on 09-23-2010, 10:34 PM:

I don't see them selling for much at all, if they even sell at all.

Posted by Frank Angel (Member # 248) on 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.

Posted by Scott Norwood (Member # 30) on 09-24-2010, 06:49 AM:

For whatever it's worth, most pre-1970 trailers are PD. They can be freely copied, exhibited, and broadcast.

Posted by Frank Angel (Member # 248) on 09-24-2010, 12:32 PM:

True, but that's the compilation and arrangement -- but the individual image from a single frame is from the film and so they will still claim those INDIVIDIAL images are still covered by copyright. And as we have seen over and over again, studios will clain copyright protection where there isn't any. The Chaplin estate notoriously claims copyright control on works that were created BEFORE the copyright law was enacted. And the thing is, very few want to take on a challenge to them when it costs so much in legal fees to do so.

Posted by Tony Bandiera Jr (Member # 2365) on 09-24-2010, 01:01 PM:

Another interesting adjunct to this is ownership (or perhaps possession of would be the better term) partial or complete prints that are used for evaluation or testing purposes only. My understanding is that the studios don't really mind as long as the media is not screened publicly or "for profit".

"For profit" can mean ANY goods or money exchanged before, during or after the screening. Someone bringing you a six-pack or a candy bar can be considered as "for profit."

I agree fully with Frank's earlier post that trailers are advertising material and by that implication fully public domain.

Posted by Sam D. Chavez (Member # 1841) on 09-24-2010, 02:41 PM:

I love all the legal opining here.

A famous lawyer told me a long time ago during labor negotiations,

"Logic is not the answer"

Posted by Martin McCaffery (Member # 37) on 09-24-2010, 02:56 PM:

If logic was the answer, we'd all be in a different business [Wink]

Posted by Louis Bornwasser (Member # 3063) on 09-24-2010, 03:07 PM:

Martin: I have feared for 20 years that you are correct. Louis

Posted by Ian Parfrey (Member # 5122) on 09-24-2010, 04:47 PM:

I suppose the same questions may be asked of any copy of a filmed product whether it be 35mm, 16mm, Super 8, DVD, Blu-Ray, VHS, Beta, 1"C, 2" quad &tc.

As long as the copy is not screened for public exhibition where the studio cannot rightfully charge for fair use, then a 35mm copy is in a legal sense no different to a crinkley VHS version.

....conversely....

A trailer's sole purpose is to ADVERTISE the film it is made from. Therefore, if logic is to have any bearing whatsoever, then public screening of said trailer is only going to benefit the studio- just call it free advertising.

In Australia, it is not illegal to own a spirit still over 5 litres, however, it IS illegal to USE it.

Go figure.

Honey, pass me the lawyer.

Posted by Mike Blakesley (Member # 26) on 09-24-2010, 05:51 PM:

Yeah, the studios ought to thank anyone for showing a trailer in public. If it's for an old movie it might encourage a video sale.

Posted by John Wilson (Member # 269) on 09-24-2010, 07:05 PM:

quote: Marco Giustini
I've reported those auction to distributors several times. Never got any answers.

Why would you bother doing that?

quote: Jack Theakston
In all likelihood, however, given the enormous amount of trailers being sold on eBay on a daily basis, no one gives a crap.

And so it should be. It's just a trailer.

Posted by Andrew Bangs (Member # 4938) on 09-25-2010, 01:49 AM:

Wow I am glad I can still get such a large reaction out of this group. It is all very good information and several points I never even thought about.

To whomever mentioned the Star Wars trailers specifically being recalled (not that I have any) but I do remember seeing one up for auction and if I am correct the current price (cant be sure if I saw an actual bid) was aprox. $170.00 so I guess one in a sea of hundreds...

At any rate I feel far more confident going to my old boss now and working out a deal with him. This could be something fun to do as a side thought till other work comes along. Then again I will have to go through them all catalogue and photograph. Yeiks maybee not as much fun as I thought...

Again Thanks for the info Gents. [beer]

Cheers!