Thursday, January 05, 2017

Eighth Circuit: Copyright & Trademark Infringement To Publish Modified Public Domain Materials

Tom & Jerry

In 2011, Copyright Litigation Blog wrote here about an Eighth Circuit decision finding that combining public domain copyright materials could constitute copyright and trademark infringement.  The case Warner Bros. Entertainment v. X One X Entertainment, 644 F.3d 584 full decision here presents difficult limitations on the free use of public domain works.

What happens when publicity stills from the Wizard of Oz, Gone With the Wind and Tom & Jerry fall into the public domain?  Can you lift a sentence from a work still under copyright and combine it with the publicity still?   Can those images be licensed?   The Eighth Circuit concluded that under the facts, the answer was "no" and entered an injunction.

On November 1, 2016, the Eighth Circuit made another decision Warner Bros. Entertainment v. X One X Entertainment, 840 F.3d 971 (8th Cir. 2016) full decision here.    Defendants challenged a statutory damages award of $2,570,000 based on $10,000 per infringement of 257 copyrights.

The Eighth Circuit fended off a slew of challenges to the award.  The facts of this case present a difficult scenario at the intersection of trademark and copyright law that will making use of public domain works that are related to copyrighted works or characters problematic and uncertain.
 Copyright law, fine art and navigating the courts. Attorney and AuthorCopyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
 Copyright Litigation Handbook on Westlaw