Warner Bros. Entertainment, Inc., et al. v. X One X Productions, et al., No. 10-1743 (8th Cir. 2011)
Annotate this CaseAppellants (AVELA) appealed a permanent injunction prohibiting them from licensing certain images extracted from publicity materials for the films "Gone with the Wind" and "The Wizard of Oz," as well as several animated short films featuring the cat-mouse duo "Tom & Jerry." At issue was whether the district court properly issued the permanent injunction after granting summary judgment in favor of appellee (Warner Bros.) on their claim that the extracted images infringed copyrights for the films. The court affirmed in large part the district court's grant of summary judgment to Warner Bros. on the issue of copyright infringement and the resulting permanent injunction. The court reversed with respect to one category of AVELA products, and vacated in corresponding part the permanent injunction entered by the district court. The court remanded for modification of the permanent injunction and further proceedings with the opinion.
Court Description: Civil case - Copyrights. Given the undisputed evidence regarding distribution of publicity materials for the Wizard of Oz and Gone with the Wind, as well as the Tom & Jerry cartoons at issue in the case, these publicity materials are in the public domain; Dorothy, Tin Man, Cowardly Lion and Scarecrow from the Wizard of Oz, Scarlett O'Hara and Rhett Butler from Gone with the Wind, and Tom and Jerry each exhibit consistent, identifiable traits in the films that are sufficiently distinctive to merit character protection under the respective film copyrights; at the very least, the scope of the film copyright covers all visual depictions of the characters, except for any aspects of the characters that were injected into the public domain by the publicity materials; the Tom and Jerry publicity materials were generic and their visual depictions and characteristics derive from works still covered by the statutory copyright; as a result, their underlying characters are not in the public domain until the copyrights on the cartoons expire; the publicity photos and materials for Gone with the Wind are no more than pictures of the actors in costume and the only images in the public domain are the precise images in the publicity materials; the characters' visual appearances in the publicity materials for The Wizard of Oz do not present the requisite consistency to establish any copyrightable elements of the film's character's visual appearances and the only images in the public domain are the precise images in the publicity materials; therefore, any visual depiction in defendant's consumer materials that is a recognizable copyrighted character from Gone with the Wind or Wizard of Oz, other than a faithful copy of the public domain image, has copied original elements from the film; plaintiff's products that reproduce one image from an item of publicity material as an identical two-dimensional image do not violate plaintiff's copyright and, the portion of the district court's permanent injunction prohibiting such depictions is vacated; products containing composites of protected and public domain images do infringe plaintiff's copyright and were properly enjoined; creation of three-dimensional items from the publicity items relies on protected images and other information from the films, and such items were properly enjoined; injunction concerning Tom & Jerry materials is modified to permit production and sale of two-dimensional items based on the first, generic depictions in the poster for the film Puss Gets the Boot.
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