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Frankly, My Dear, It Has No Copyright

It’s OK to print and sell a copy of an old movie poster on a t-shirt, but only if it is not combined with any other element of the movie, a federal appellate court ruled.

The trial court granted Warner Bros. Entertainment, Inc. and Turner Entertainment Co.’s request to stop two companies from reproducing old movie publicity materials as posters, on t-shirts, and in three-dimensional designs.   The Eighth Circuit reversed part of the trial court’s decision, finding that reproducing the posters as posters and on t-shirts was not copyright infringement because the posters were in the public domain.  “[N]o reasonable jury could find that merely printing a public domain image on a new type of surface (such as a T-shirt or playing card), instead of the original surface (movie poster paper or lobby card paper), adds an increment of expression of the film character to the image,” the appellate court wrote.

The appellate court said the purpose of the original publicity materials for Gone with the WindThe Wizard of Oz, and Tom & Jerry short films “was to reach as much of the public as possible” by being freely and extensively distributed to the public, thereby abandoning the studio’s “right to control reproduction, distribution, and sale of the images in the publicity materials.” The publicity materials were not copyrighted and fell into the public domain.  As a result, the reproduction of the original materials in two-dimensions, without more, does not infringe on any rights of Warner Bros. or Turner Entertainment.

However, the appellate court found that “this freedom to make new works based on public domain materials ends where the resulting derivative work comes into conflict with a valid copyright.”  This conflict occurs when the reproductions include elements from the movies themselves, which have a valid copyright, such as quotes from dialogue or added images that were not in the original publicity materials.  With the added elements, the reproductions would infringe on the copyright for the films themselves and an injunction to stop those reproductions is proper.

Warner Bros. Entertainment, Inc., et. al v X One X Productions, dba X One X Movie Archives, Inc., et. al., 8th Cir. No.10-1743, issued July 5, 2011.

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