Wednesday, July 06, 2011
Eighth Circuit: Adding A Phrase or Dimension to Public Domain Work Is Copyright Infringement
What happens when you take an image from a publicity still for the Wizard of Oz of Judy Garland that has fallen into the public domain and add the phrase "There's no place like home?" where the phrase is part of a book and film under copyright? Or if you take that same public domain image and render it in three dimensions with the added detail from your own imagination?
The Eighth Circuit has held that you have engaged in copyright infringement in Warner Bros. Entertainment, Inc. v. X One X Productions (July 5, 2011) (10-1743).
The decision is an interesting one, finding that the enhancements to the public domain works are "evocative" of the copyrighted book and films. The decision draws interesting distinctions between a "James Bond" character whose visual appearance changes from film to film, and other cartoon-type characters who are recognizable visually.
A lot of thought went into the opinion, but it will be interesting to see whether other circuits or the US Supreme Court follows in light of the opinion in Dastar.
Enhancements to the public domain will be the hot topic of the next few years in copyight litigation, this is not the last word.
A past post on Dastar and this case here.
Dastar Corporation v. 20th Century Fox Film Corporation et al., 539 U.S. 23 (2003)
Patently-O's take on the X One X case with links to documents here.
Warner Bros Entertainment v X One X Productions 8th Cir July 5 2011
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Labels: 3d, character licensing, copyright in characters, copyright infringement, dastar, enhancements to public domain images, public domain, publicity stills, wizard of oz
Partner in law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2019-2020). The New York Law Journal called it "an indispensable guide". Board of Directors of the Fordham Law Alumni Association, former General Counsel & Director Federal Bar Association, FBA Chair of the Circuit VPs, ViP for Second Circuit. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014). Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.