Not Gone with the Wind: IP Rights Despite Public Domain Images
Art Law

Not Gone with the Wind: IP Rights Despite Public Domain Images

In 2006, Warner Bros. filed suit against A.V.E.L.A., X One X Productions, and ArtNostalgia.com, Inc. (collectively, “AVELA”) for copyright and trademark infringement under the Copyright Act, the Lanham Act, and state law. AVELA used publicity materials that were created and distributed by Warner Bros. for the films Wizard of Oz and Gone with the Wind, before the films were completed and copyrighted. These publicity materials contained images of the characters on set, and due to a failure to comply with the notice requirements of the 1909 Copyright Act, the Eighth Circuit found that these materials entered the public domain. AVELA subsequently obtained copies of these publicity materials and extracted the images of famous film characters such as Dorothy, Scarecrow, and Scarlett O’Hara. AVELA licensed out these extracted images for use on clothing and other memorabilia. A 2011 Eighth Circuit opinion focused on the Warner Bros. copyrights and whether AVELA had the right to grant licenses for the production of the memorabilia. The court divided these materials into three categories, the first being exact reproductions of two-dimensional images extracted from the publicity material. The Court found Warner Bros. had no copyright protection for the use of such images on memorabilia. […]

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