Can We Make Custom Movie Posters?

Dear Rich: I have a question for you. We run a theatre here in Ottawa, Ontario and wanted to start creating our own 'promotional posters' for upcoming movies. Our movies are mainly cult classic and B-movies anywhere from 1940 to 1980. We would like to hire an artist to create a custom promo poster advertising the showing of the film at our theatre. We pay for rights to play the film, but we're unsure if we are allowed to create these custom movie posters. Also, we would like to print a limited supply of these posters, say 100 – 200, to offer souvenirs from our theatre. Do you have any idea if this would be breaking the law? I see this done a lot for music venue's (the resale of music venue posters), but never for theatres. Any advice would be awesome! Wow, will you be showing our favorite B cult movie, Carnival of Souls? We loved that movie when we first saw it and still love it today (and the fabulous soundtrack). And just as the lead character moved in and out of reality, the film moved in and out of copyright. Some claim it is in the public domain while others claim that a chain of title has been reestablished.
Right, you had a question. We love your theater for presenting older films (no subwoofers needed for these movies) and we love your theater for making original posters of the film. (Can we pre-order Carnival of Souls?). We hope our love for you doesn't affect our judgment but the short answer is that we think your creation and sale of movie posters will probably be fine.
The difference between music posters and movie posters? Yes, there is a diff. Movie posters usually include copyrightable elements from films or copyrighted characters from those films -- think Sam Spade, Superman, or the Terminator. That's not the case with music posters where the emphasis is on the artwork and the event. We bring that up because the only way we can see you tripping any alarms is if you use copyrighted stills or imagery from a film (or as in the case of this lawsuit, you copy a non-film copyrighted image into your poster). But if we were a betting blog, we'd bet that the copyright owners of these films (if they are even aware of your use) won't bother chasing after a hip Ottawa movie theater which may after all, be one of the few paying venues showing such films. Takeaway: If you're really paranoid, keep in mind that the more original the poster -- and the less use of stills from the films -- the less chance for hassle.
This just in from our CYA Dept., We're not experts on Canadian copyright law which differs in many ways from U.S. Copyright law (also, note the distinction between "fair dealing" and "fair use").

He wants to use image from concert video

Dear Rich: I have some old Who videos from a concert about 35 years ago that I took one frame out of and made my own electronic art out of it. While what I created is quite different then the original frame, it is the foundation of my art picture that I am left with. If I were to hang that up or sell it, would I be violating copyright laws. It was from a very old concert and the frame that I used as a my foundation for what I created could have come from anywhere. And, if I am violating copyright, is it really enforceable and/or do you think it would be an issue with anyone if I were to sell this edited image? Short answer dept. No we don't think your use is likely to become a legal issue. As we explained in yesterday's entry, using a single still can constitute infringement though it's usually not likely to result in a lawsuit. The concert film is most likely protected under copyright law as the Who haven't been around long enough to trigger any of the traps that would drop the movie into the public domain -- for example, if it was published before 1964 and not renewed.
Fair Use Dept. It sounds as if you have the makings of a decent fair use argument (although we'd prefer if you didn't get embroiled in that type of dispute). Here's a link to compare your use to other visual arts fair use cases.
Staying out of trouble dept. Are you selling only a single print?  Problems are more likely to develop if you market the work in bulk. So if you're paranoid about being hassled, don't mass produce your prints.

Using movie stills at a website

Dear Rich: I am planing to make a site that shows screenshots from the movies that I love. A movie might have 50 or so, (or even more?) screenshots in it. There will be no critics or teaching material. There might be an affiliate link to purchase movie. Of course I want them to be in good quality so these might not consider as thumbnails but not wallpaper size also. I made a quick research and have a roughly an idea what might be considered as copyright infringement. It seems like a very fuzzy area in my opinion. On one hand it is promoting the work but on the other hand copyright holders might ask for permission. History Dept. Did you know that prior to 1912, the U.S. Copyright Office did not recognize film as copyrightable subject matter? Early filmmakers had to print out every frame of the film and register each movie as a series of photographs. The law was amended in 1912 because, as a Congressional report announced, movie production, “has become a business of vast proportions.”
Yes, you're infringing. It's not really that fuzzy. Unauthorized reproductions are infringement unless excused by a defense such as fair use. You probably can't afford to fight a fair use battle, so the question you're probably more concerned about is whether movie companies will come after uses like yours. After all, a lot of websites freely use movie stills to discuss films and don't run into problems. Our suggestion: follow Aristotle's advice, "Everything in moderation." If you use two or three stills or only use thumbnails, you're unlikely to get much fanmail from movie company lawyers. But when you begin using 50 full-size images, you're more likely to show up on their radar screen.
Are you promoting the film? Many infringers argue that they're actually promoting the work they've ripped off ... and you can certainly bring that up as part of your fair use defense. But that argument rarely succeeds. First, you can promote the film without infringing copyright. Second, like many bloggers and website owners, it looks like you're really concerned with promoting your own site and earning money from affiliate sales.  Finally, copyright owners might not want to be promoted in the manner you do it at your blog. Part of the benefit of owning a copyright is that you can control, to a limited extent, the manner in which the work is promoted.
Speaking of theft ... We recently re-watched this heist film (we love Akim Tamiroff) and when we Googled it, we noted (wistfully) that the movie itself had been heisted.