Monday, February 21, 2011

Dorothy's Not In Kansas Anymore: Public Domain Film Posters With Slogans Found To Infringe

Good post on a copyright litigation involving the use of film posters in the public domain from the Wizard of Oz on the Patentlyo blog here.    For those interested in character licensing, dead celebrities, and the Supreme Court's warning in Dastar Corporation v. 20th Century Fox Film Corporation et al., 539 U.S. 23 (2003) that trademark and copyright law should not be combined to create a mutant species of copyright law that lives forever, tune in to Warner Bros. v. X One X.

 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  


Anonymous said...

Putting aside the question of whether a movie poster created before the copyright in the movie was registered is a derivative of the movie under the 1909 Copyright Act (or should I say assuming for this argument that the poster is a derivative of the movie), I am shocked at the conceptual confusion shown by the lower court in the excerpts from its ruling quoted on the patently-o blog.

First, this is not a case of literary copyright infringement. By that I mean the written text of the L. Frank Baum novel has nothing to do with the issue posed in this case. It has everything to do with visual or design copyrights.

The images printed on the accused t-shirts are pictures of the movie characters in costume, as they appear in the movie version of the "Wizard of Oz." Through the happenstance of some early (and in my opinion erroneous) court decisions, the costumes are deemed useful articles, and so are not copyrightable. But the pictures of the costumed characters are undeniably copyrightable.

Who owns the copyrights in the costumed characters? Their author was no doubt a costume designer and make-up artist in the employ of the movie company. The movie company made the pictures of these characters and its copyrights in the film cover these pictures.

If the movie poster from which the t-shirt images were taken is a derivative of the movie, what copyrights existed in the poster? As a derivative work, copyrights in the poster only attached to its newly authored content. Thus, excluding the copyrighted images of the characters, anything left is the copyrightable authorship in the poster.

When the poster entered the public domain, presumably because its copyrights expired, the movie remained copyrighted. Thus, only the poster's new authorship (in other words, excluding the images of the charaters) passed into the public domain.

Thus, the defendants who owned a copy of the poster had no right to make commercial use the images of the movie's characters shown on the poster, or to license others to use those images. Finally, there is no reason to mention the short phrases that appear below the pictures of the characters on some of the accused t-shirts. They are too brief to be considered copyrightable works of authorship. If these phrases were copyrightable, to the extent they appear as text in the novel, they have passed into the public domain when the copyrights on the novel expired.

In short, the literary copyright has passed into the public domain. But the copyright in the audio-visual work (i.e. the movie) persists. The only copyrights in the poster that ever exited were for the new contributions of its author, not for the images of the characters in their movie costumes. When the copyrights in the poster passed into the public domain that merely meant the content other than the images of the movie characters was useable by the general public without need of a copyright license.

LASIS_BLOG said...

New York Law School's legal reporting blog, LASIS, recently analyzed the copyright issues surrounding the Wizard of Oz. We thought you would be interested in reading our piece:

Anonymous said...

If a film was copyrighted with the date 1958-06-25 and renewed 1986-12-16, didn't they miss their 28 year window by 6 months and the film fell into the Public Domain?