101743P.pdf   07/05/2011  Warner Bros. Entertainment  v.  X One X Productions
   U.S. Court of Appeals Case No:  10-1743
   U.S. District Court for the Eastern District of Missouri - St. Louis   
   [PUBLISHED] [Gruender, Author, with Benton and Shepherd, Circuit Judges]
   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.