The Artful Jurist

Is public domain material a free-for-all for any and every purpose?  Maybe not.

One of my students in the playwriting class I'm currently teaching called my attention to the case of Warner Bros. Entertainment, Inc., et al., v. X One X Productions, et al., which was recently decided in the U.S. Court of Appeals for the Eight Circuit.  The case involved a manufacturer who was incorporating into novelty items public domain publicity images of the films Gone With the Wind and The Wizard of Oz as well as publicity images of the cartoon characters Tom and Jerry.  Warner Bros., which owns the characters depicted in the images, sued for copyright infringement.

The case was tricky because, first, most characters aren't usually copyrightable.  But, in the case of cartoon characters or very distinctive characters, sometimes they are.  The Court had to decide whether publicity photos of actors in costume alone constituted an image of a copyrighted character.  The Court said no to that.  That came too close to claiming the actor, himself, was copyrightable.

But another issue was whether the publicity images, which were undisputed to be in the public domain, were fair game to be incorporated into other products by the manufacturer.  The Court's basic ruling goes something like this:

So long as the public domain property is merely duplicated, there can be no copyright infringement.  However, if you include copyrighted material into the duplication without permission, that constitutes an infringement of copyright.

An example the Court gave was this: a public domain photo of the actress Judy Garland in her "Dorothy" costume could be duplicated without violating copyright law unless you also include with the photo her movie character's famous last line, "There's no place like home."  That line is the copyrighted intellectual property of Warner Bros., and the use of public domain property doesn't open the door to the inclusion of that which isn't in the public domain.