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Trailers are not ‘fair use’ of movie copyrights

Movie studios will be protected where someone uses clips of their copyrighted films to make and sell previews, a US court ruled this month. The defence of 'fair use', where reporters or teachers use copyrighted material for socially valuable purposes, does not apply to movie trailers.18 Aug 2003

The case concerned Video Pipeline, a New Jersey company that amalgamated trailers and advertising from various movie studios, copied the footage to video, and sold the tapes to home video retailers for showing in-store. Problems began when it streamed the tapes over the internet.

In 1988 Video Pipeline had a contract with Buena Vista Home Entertainment, a subsidiary of Disney, to use the clips in video trailers to be shown on screen in stores. However, in 2000, Buena Vista said it must stop also streaming the content on-line, largely because in doing so it was competing with the studio's own service.

Video Pipeline tried to argue that it was advertising for Disney and that its movie clips amounted to fair use – they always featured the Disney logo at the start and the end.

The case came to court and in April last year Judge Jerome Siandle ruled that Video Pipeline should no longer stream the clips over the internet. Video Pipeline is appealing that decision.

The current ruling relates to the copyright issue. The court has now decided that the creation and sale of clips from the copyrighted films did amount to breach of copyright under the US Copyright Act.

The judge found Video Pipeline liable for copyright infringement, trade mark violation and unfair competition. Judge Jerome Siandle wrote:

"Trailers have become more than advertising material for other products; they have become valuable entertainment content in their own right, as web surfers continually frequent the internet to view these on-line commodities prior to movie releases, [...] and such previews increase web site traffic and on-line 'stickiness,' which give web site owners additional time and opportunities to market their services and products."