8th Circuit Decides the 3rd Dimension Adds Character

Recently, the 8th Circuit decided an appeal in Warner Bros. v AVELA. AVELA makes memorabilia such as snow globes, puzzles, t-shirts and other products primarily from movies. Warner Bros. sued AVELA for copyright infringement for use of materials associated with Gone With The Wind, The Wizard of Oz and Tom & Jerry. Some of the images were based on posters and still photographs which AVELA alleged fell into the public domain. These promotional pieces were created before the motion pictures were published. These works were all subject to the 1909 Copyright Act. The Eighth Circuit agreed that several of the images were published even though there were restrictions on the use of the promotional works, the predecessors in interest to plaintiff intended the works to be provided to the public. Some of the works were published without any copyright notice. Prior to 1989, copyright notices were required. Several works fell into the public domain due to the failure to put a copyright notice on the works. In addition, some of the works fell into the public domain because the works were not renewed. (Under the 1909 Act, copyrighted works were required to be renewed every 28 years to maintain the registration.) A copy of the decision is available here. There are 2 troubling aspects of the decision. (Full disclosure: I previously worked on this brief before the district court.) First, the Court decided that where the press photos such as Judy Garland as Dorothy in The Wizard of Oz which were created before the movie was complete were in the public domain. However, the Court found that the combination of the photo with the phrase, "There's no place like home," constituted copyright infringement of the Warner Bros. character. This does not make sense. Clearly, the phrase, "There's no place like home" is not copyrightable in and of itself. (Short phrases are not copyrightable.) Further, a similar phrase "There is no place like home" was used in the Frank L. Baum novel from which the movie is based. (The Frank L. Baum book was published in 1908 – which places the book in the public domain since before AVELA started creating the memorabilia.) Second, the Court decided that the 2-dimensional works such as puzzles and t-shirts that are based on the works that fell into the public domain were not infringing and thus AVELA should not be permanently enjoined. However, 3-dimensional works such as snow globes based on works that fell into the public domain were infringing and thus subject to a permanent injunction. The Court reasoned that the 3- dimensional works were based on the characters from the movies (owned by Warner Bros.). This seems contradictory. Clearly, derivative works based on works in the public domain are subject to copyright protection. However, the Court finds that AVELA infringed Warner Bros. copyright for adding a third dimension to the posters and pictures in the public domain. The Court comments about the length of a nose unable to be determined in a 2-dimensional work. Even if true (which I have some doubt – there is such a thing as scale and proportion and multiple angles which may create some level of determination), why wouldn't these considerations be considered scenes a faire or subject to an artist's interpretation and thus, capable of its own separate copyright? Given the recent Bratz decision limiting the infringement of derivative works for the different faces of the different generations of Bratz dolls because there were only a limited number of ways to create faces and facial expressions, the Eighth Circuit seems to disagree. Cf. Mattel, Inc. v. MGA Entm't, Inc., 2010 U.S. App. LEXIS 26937, *22 – *32 (9th Cir. 2010). There is only so many ways which the back of a head or the dimensions of article of the characters' clothing or costumes can be drawn. What the Eighth Circuit has done is not only remove the works from the public domain (in the instance of the posters / pictures used in connection with short phrases) but also has effectively claimed that copyrights in characters can extend to prevent derivative works in the public domain if the derivative works are three-dimensional. Yet if both the original work in the public domain and the derivative work are both two-dimensional, then there is no infringement. A finding that a copyright in a character extends to prevent the creation of three dimensional derivative works based on two-dimensional works in the public domain does not make sense. Such line-drawing fits no purpose. It creates not only a bad rule and precedent but an impossibility, limiting the creation of new works. Preventing derivative works from being made from works in the public domain was not the intended result of the Copyright Act.

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