the United States Court of Appeals for the Eighth Circuit

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”