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As a general proposition, the public is not limited solely to making exact replicas of public domain materials, but rather is free to use public domain materials in new ways (i.e., to make derivative works by adding to and recombining elements of the public domain materials). Where a work has gone into the public domain, it does in fact follow that any individual is entitled to develop this work in new ways. Nevertheless, this freedom to make new works based on public domain materials ends where the resulting derivative work comes into conflict with a valid copyright.
A.V.E.L.A., Inc., X One X Productions, and Art-Nostalgia.com, Inc. (collectively, "AVELA") has acquired restored versions of the movie posters and lobby cards for The Wizard of Oz, Gone with the Wind, and several Tom & Jerry short films. From these publicity materials, AVELA has extracted the images of famous characters from the films. AVELA licensed the extracted images for use on items such as shirts, lunch boxes, music box lids, and playing cards, and as models for three-dimensional figurines such as statuettes, busts, figurines inside water globes, and action figures. Warner Bros. Entertainment, Inc., Warner Bros. Consumer Products, Inc., and Turner Entertainment Co. (collectively, "Warner Bros."), which asserted ownership of registered copyrights to the 1939 Metro-Goldwyn-Mayer ("MGM") films The Wizard of Oz and Gone with the Wind, sued AVELA, claiming that such use of the extracted images infringed the copyrights for the films. Warner Bros. also asserted claims of, inter alia, trademark infringement and unfair competition. AVELA contended that the distribution of the publicity materials without copyright notice had injected them into the public domain, thus precluding any restrictions on their use. On cross-motions for summary judgment, the district court granted summary judgment to Warner Bros. on the copyright infringement claim and denied summary judgment to both parties on the trademark infringement and unfair competition claims. The district court issued a permanent injunction prohibiting AVELA from licensing the aforementioned images. AVELA challenged the decision.
Under the circumstances, did AVELA infringe Warner Bros.’ copyright?
No, with regard to the products that reproduced in two dimensions any one portion of an image from any one item of publicity material.
The Court applied a Ninth Circuit test and determined that the publicity materials at issue simply were not distributed to a definitely selected class of persons without the right of reproduction, distribution, or sale. According to the Court, all of the publicity materials were in the public domain. The Court ruled that products that reproduced in two dimensions any one portion of an image from any one item of publicity material, without more, did not infringe the copyright.