Actually it would be worse. If the IP owner takes the OP to court the only defence would be to claim that you didn't know it was copyright/a trademark. The court would still rule in favour of the film company but the penalties would be less extreme than if the OP were to wilfully infringe the film companies copyright/trademark. By putting a notice on the poster the OP would acknowledge that they were aware the work was protected and went ahead anyway. That would result in a judgement of wilful infringement and higher penalties.
The film companies spend a lot of money making and promoting their movies. The OP is intending to make something that people will want primarily because of the time, effort and expense that the movie company invested into the film. If the business is successful the film companies would start to notice and may well take legal action for infringement.
Entering into a license agreement would solve this but you would need to work out a viable offer that makes it worth the film company's while doing the deal. Unfortunately the legal costs for doing IP licensing deals is quite high which would likely make the idea a non-starter.
You would also have to overcome the problem of image approvals. The films marketing company spent time and money creating the original posters and images associated with the film. They (hopefully) like the images/style they created and may not want your alternative vision for their movie. Most licensing agreements give the IP owner final approval and it would be a pain to waste time and money making something that they don't approve.
I take your points and you obviously know what you're talking about, however, I was talking about the clear example of trade marks as opposed to copyright. I don't actually see any need to acknowledge the copyright, however, in terms of the trade marks, you should make it clear that the TMs belong to the film company in question and they are not being used in this case as an indicator of origin.
Using the example below of Robocop, the term is actually a registered trade mark, however it is only registered for videos, suggesting that the intention is to prevent counterfeiting. Another mark is registered for toys. The trade mark is not registered for printed materials like posters, and consequently the rights would be limited against someone using the mark in relation to posters.
They could potentially argue that the usage is taking unfair advantage of the other mark and that they have unregistered rights in the mark, which they may seek to enforce in relation to posters, but the risk is low that they would take notice of someone creating alternative posters. Having said that, the risk is there, and depending on the film company's stance, they may feel a disclaimer is irrelevant.
You could claim innocence, however, this is no defence to trade mark infringement, and neither in copyright, but as you acknowledge with the issue of knowledge only contributing to the extent of any damages award.
In terms of a derivative work, I don't feel that it would be considered to be so provided that the work was completely different in nature to the extent that the only item copied was the name of the film and details such as the names of the actors etc.
For instance the Robocop poster shown at the following link is so completely different from the original poster (
http://www.impawards.com/1987/robocop.html as one example) that I do not believe it would be classed as a derivative work:
http://www.screenjunkies.com/movies/movie-news/9-classic-movie-posters-reinvented/.
As a result, you would have to seek copyright in smaller elements of the original such as the name of the film. However, as mentioned, copyright would not vest in the name of the movie due to it being too short.
There is a possibility that there could be copyright in the typographical arrangement of the names of the actors/directors etc however, if this was completely changed in the revised poster this would not be a problem.
Of course it depends on the posters that the OP has in mind to create. My input was predicated on the OP creating posters entirely different from the originals, rather than derivative works. You may have of course have had similar works in mind which is where the difference of opinion may lie!
In some ways, I would have thought that releasing a set of original posters based on old movies may even renew interest in old movies benefiting the film companies to an extent. I don't necessarily see the film company having reasonable grounds for pursuing the creator on the basis of copyright.
In terms of the studio not liking an original take on a movie, then provided it wasn't defamatory, and simply paying homage, again, the risk would be low that the film company would have any grounds to take action against the creator. I acknowledge that that defamation is very much in the eye of the beholder in terms of alleging defamation though!
There may be issues surrounding trade mark infringement however as outlined above. Of course, in both circumstances, the film company could still take action even if unreasonable. I think I might contact the film company behind Robocop to see what their views would be. Not entirely sure I'd receive a response, but would be interesting to see their views.
In terms of your views on parody, I believe you're referring to US case law, whereas I believe a copyright claim would be more likely to be brought under UK law as I believe the OP is based in the UK.
