the United States Court of Appeals for the Eighth Circuit

“ It would be difficult to write successful works of fiction without negotiating for dozens or hundreds of copyright licenses, even though such stereotyped characters are the products not of the creative imagination but of simple observation of the human comedy. Gaiman, 360 F.3d at 660. While the overly broad characters would be in the public domain rather than copyrighted in the instant case, the analysis of the copyrightability of a character must be the same in either case. ”

“ The Eighth Amendment's basic concept "is nothing less than the dignity of man" and assures that a state's punishment power "be exercised within the limits of civilized standards." Fines, imprisonment, and even execution may be imposed "but any technique outside the bounds of these traditional penalties is constitutionally suspect." ”

“ There can be no argument that excessive whipping or an inappropriate manner of whipping or too great frequency of whipping or the [*580] use of studded or overlong straps all constitute cruel and unusual punishment. But if whipping were to be authorized, how does one, or any court, ascertain the point which would distinguish the permissible from that which is cruel and unusual? (7) Corporal punishment generates hate toward the keepers who punish and toward the system which permits it. It is degrading to the punisher and to the punished alike. ”

“ The second category comprises AVELA products that each juxtapose an image extracted from an item of publicity material with another image extracted from elsewhere in the publicity materials, or with a printed phrase from the book underlying the subject film, to create a new composite work. Even if we assume that each composite work is composed entirely of faithful extracts from public domain materials, the new arrangement of the extracts in the composite work is a new increment of expression that evokes the film character in a way the individual items of public domain material did not. ”

“ Assuming, and the court is not at all sure that the assumption is valid, that all of the isolation cells are equipped with two bunks, it follows that if three or four men are put in the same cell, and that frequently happens, one or two of them are going to have to sleep on the floor. ****** As a class, the convicts confined in punitive isolation or in administrative segregation, for that matter, are violent men. ”

“ In addition, there is no dispute that the images in the AVELA works are substantially similar to the images in the copyrighted films, as they are in fact images of the same people in the same costumes (or, in the case of Tom and Jerry, of the same cartoon characters) . The only remaining question is whether AVELA has appropriated "original elements" of the films, see Taylor, 403 F.3d at 962-63, or solely elements that are in the public domain.
Warner Bros. does not challenge the products that are exact reproductions of an entire item of publicity material. ”

“ Punishment may include solitary confinement, reduction of rations, corporal punishment, loss of mail, recreation and other privileges, loss of future good time, and recording the offense for parole purposes. Corporal punishment shall not exceed ten lashes with the strap and a period in solitary confinement. In no case may the strap be applied to the bare buttocks. An accuser or other inmate shall not administer the strap. The strap shall not be used in the fields. No inmate shall be whipped within 24 hours of any preceding whipping. ”

“ For example, Leith Adams, Warner Bros.'s expert, conceded that theaters could "buy by the thousands" handouts and promotional flyers to pass out to the general public. At least some of these handouts and flyers included images of the characters. "Exploitation books" associated with The Wizard of Oz and Gone with the Wind allowed theaters to select promotional giveaway or sale items for the public, ranging from color-tinted publicity photographs to matchbooks to spare-tire covers. ”

“ Confined together under rigorous conditions in the same cell or in immediately adjacent cells, the convicts identify with each other and reinforce each other in confrontation with custodial personnel, and those personnel in turn identify with each other and reinforce each other in confrontation with the convicts. ******
Inmate violence unavoidably produces a forcible response from prison personnel who may be required to use such things as night sticks and the chemical known as "Mace" to quell disorders. ”

“ At least one court has held that distribution of promotional photographs to theaters, even under an effective condition that the photographs be returned, is not sufficient to demonstrate a limited publication where the photographs are also distributed for use by newspapers and magazines. ”

“ California, supra, 370 U.S. at 676, said, "The Eighth Amendment expresses the revulsion of civilized man against barbarous acts—the 'cry of horror' against man's inhumanity to his fellow man." In Rudolph v. Alabama, 375 U.S. 889 (1963) , three dissenters to the denial of certiorari spoke of "standards of decency more or less universally accepted," of disproportion between offense and punishment, and of "unnecessary cruelty." ”

“ The Scope of the Material Dedicated to the Public AVELA contends that the injection of the publicity materials into the public domain simultaneously injected the film characters themselves into the public domain. To the extent that copyright-eligible aspects of a character are injected into the public domain, the character protection under the corresponding film copyrights must be limited accordingly. ”

“ From that opinion we glean a recognition of, and a reliance in part upon, attitudes of contemporary society and comparative law. And the emphasis is on man's basic dignity, on civilized precepts, and on flexibility and improvement in standards of decency as society progresses and matures. ”

“ A. Copyright Ownership The plaintiff in a copyright infringement claim has the burden to prove ownership of a valid copyright. Taylor Corp. v. Four Seasons Greetings, LLC, 403 F.3d 958, 962 (8th Cir. 2005) . In support of its motion for summary judgment, Warner Bros. submitted an affidavit from Kate Chilton, its in-house counsel, tracing the interaction of the various assignment and corporate merger documents that establish Warner Bros.'s chain of title to the asserted copyrights back to 1939. ”

“ These were in effect until the district court decision in the present case was rendered June 3, 1967. In addition to a number of other provisions, the rules state that certain "major offenses will warrant corporal punishment." The ones listed are homosexuality, agitation, insubordination, making or concealing weapons, refusal to work when medically certified able to work, and participating in or inciting a riot. They further state:
No inmate shall ever be authorized to inflict any corporal punishment under color of prison authority on another inmate. ”

“ The court also ordered the Department to pay the costs of litigation. Id. at 281–285. The appellants contest these aspects of the judgment entered below. We affirm.
Indefinite Punitive Isolation. Judge Henley described the conditions of punitive isolation in the following terms:
An inmate sentenced to punitive isolation receives a sentence to confinement in an extremely small cell under rigorous conditions for an indeterminate period of time with his status being reviewed at the end of each fourteen day period. ”

“ Despite the January 1966 requirement that no inmate was to inflict punishment on another, the record is replete with instances where this very thing took place. (3) Regulations are easily circumvented. Although it was a long-standing requirement that a whipping was to be administered only when the prisoner was fully clothed, this record discloses instances of whippings upon the bare buttocks, and with consequent injury. (4) Corporal punishment is easily subject to abuse in the hands of the sadistic and the unscrupulous. ”

“ II. Discussion Although certain claims remain pending in the district court, we have jurisdiction over this appeal of the entry of a permanent injunction under 28 U.S.C. § 1292 (a) (1) . Because the propriety of the permanent injunction depends upon the propriety of the underlying grant of summary judgment on the copyright infringement claim, we have jurisdiction to review the decision granting summary judgment as well. ”

“ We were also advised that at a meeting of the Board held February 29, 1968, with all members in attendance, a resolution was adopted that corporal punishment in any form "be abolished as a means of discipline in the institution." ”

“ If the publicity material images for The Wizard of Oz were held to establish the visual elements of copyrightable characters, their scope would encompass almost any character who wears a scarecrow or lion costume, and a wide range of little girl and silver robotic costumes as well, creating an unacceptable result:
If a drunken old bum were a copyrightable character, so would be a drunken suburban housewife, a gesticulating Frenchman, a fire-breathing dragon, a talking cat, a Prussian officer who wears a monocle and clicks his heels, a masked magician, Rice v. ”

“ It may be observed in this connection that penal admeasurements made by general conscience and sense of fundamental fairness doubtless will not be without some relationship to the humane concepts and reactions of present-day social climate. ”

“ It "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." 356 U.S. at 102. Virtually all the world's civilized nations refuse to impose statelessness as punishment for crime. ”

“ Metro-Goldwyn-Mayer, 900 F. Supp. at 1296 (citing "various character traits that are specific to Bond—i.e. his cold-bloodedness; his overt sexuality; his love of martinis 'shaken, not stirred;' his marksmanship; his 'license to kill' and use of guns; his physical strength; [and] his sophistication," rather than his visual appearance alone, as establishing the copyrightability of the character) ”

“ The images in these publicity materials were not drawn from the film footage that was used in the films; rather, they were created independently by still photographers and artists before or during production of the films. The publicity materials, such as movie posters, lobby cards, still photographs, and press books, were distributed by the original rights-holder, MGM's parent company Loew's, Inc., [1] and did not comply with the copyright notice requirements of the 1909 Copyright Act, 17 U.S.C. §§ 1 et seq. ”

“ Supposedly, they are administered [*575] while the prisoner is fully clothed. Petitioners Ernst and Mask, however, testified without contradiction that they were required to lower their trousers and that they received lashes on the bare buttocks. There is corroborating and other evidence to the same effect with respect to other inmates and there was proof, some offered through the State Police, of deep bruises and bleeding.
12.Whipping is the primary disciplinary measure used in the Arkansas system. Prisioners there have few privileges which can be withheld from them as punishment. ”

“ Vermont, 144 U.S. 323, 332 (1892) ; and Collins v. Johnston, 237 U.S. 502, 510–511 (1915) , the Eighth Amendment's guarantee against the infliction of cruel and unusual punishments seems now to have come to be regarded as directly applicable to the states through the due process clause of the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 666 (1962) , and Mr. Justice Douglas in concurrence at 675; Wright v. McMann, 387 F.2d 519, 522 (2 Cir. 1967) . See State of La. ex rel. ”