Movie studios, when promoting movies such as The Wizard of Oz and Gone With The Wind, created original works, such as photographs of the stars in costume on the set, for use in posters and flyers and the like. Some of these promotional materials were published without notice, and under the 1909 Copyright Act, were therefore injected into the public domain.

A.V.E.L.A. obtained some of these promotional materials and sold not only copies of ‘vintage’ movie posters, but ‘extracted’ the images and modified them for merchandise such as apparel and action figures (yes, same A.V.E.L.A. in the Betty Boop case).

The owners of the copyrights in these underlying movies (and characters) argued that defendants’ merchandise (other than precise copies of the promotional materials) infringed their copyrights; A.V.E.L.A. argues that it was allowed to make derivative works of public domain materials (and that, impliedly, the characters depicted were PD).

HELD: While one may make derivative works of PD material, “this freedom to make new works based on PD materials ends where the resulting derivative work comes into conflict with a valid copyright. (page 14).
Also: “. . . no visual aspects of the film characters in the protected movies are in the public domain, apart from the publicity materials themselves. Therefore, any visual representation that is recognizable as a copyrightable character from one of these films, rather than a faithful copy of a PD image, has copied ‘original elements’ from the corresponding film.” (page 23).

See page 23 on for examples of what defendant could and could not do.

 
Decision 8th Cir Warner Bros Avela Public Domain(function() { var scribd = document.createElement(“script”); scribd.type = “text/javascript”; scribd.async = true; scribd.src = “http://www.scribd.com/javascripts/embed_code/inject.js”; var s = document.getElementsByTagName(“script”)[0]; s.parentNode.insertBefore(scribd, s); })();