Wednesday, July 06, 2011

Copyright gets around the world while the public domain is still putting on its shoes

From Warner Bros. v. X One X:
This principle [that reproducing public domain publicity images on new surfaces doesn't infringe copyright in the characters depicted] would not apply if the new surface itself is independently evocative of the film character. For example, reproducing a publicity image of Judy Garland as Dorothy on a ruby slipper might well infringe the film copyright for The Wizard of Oz.
If this is true, why wouldn't making ruby slippers--themselves highly evocative of the film character--also infringe the character copyright?  In what way are ruby slippers, whether picture-adorned or not, substantially similar to the film character of Dorothy Gale?  Or, what is the copyrightable element that makes the picture-adorned slippers a derivative work of the film rather than a reproduction of the public domain picture?  The court's opinion is in other places quite careful; this footnote makes no sense.


  1. Forgive my comment if its a bit ignorant, but where is the "independently evocative" standard derived from, and what are the boundaries of such a standard?

  2. Where: beats the heck out of me. Boundaries: beats the heck out of me. To me it represents thoughtless capitulation to the idea that copyright owners own anything that evokes their works, which isn't the standard; the standard is substantial similarity (or qualification as a derivative work), and the court doesn't explain why either would apply here.

  3. Judith_IP2:44 AM

    The court was supporting this conclusion with that example: "Accordingly, products combining extracts from the public domain materials in a new arrangement infringe the copyright in the corresponding film."

    The ruby slippers are public domain, so is the image of the actress playing Dorothy, but if you add them together, apparently magically copyright appears. I don't understand how this works.

  4. Argh, the confusion of character copyright and trademark continues.