dolls, and advertisements, the plaintiff’s copyright did not create any character protection. Id. at *6.[1]
Therefore, we must determine if any individual is depicted with consistent, distinctive visual characteristics throughout the various publicity materials. If so, those consistent visual characteristics define the “copyrightable elements” of that film character, Siegel, 542 F. Supp. 2d at 1126, which were injected into the public domain by the publicity materials. If not, then there are no visual aspects of the film character in the public domain, apart from the publicity material images themselves.
With respect to the cartoon characters Tom and Jerry, we note that on the spectrum of character copyrightability, the category of cartoon characters often is cited as the paradigm of distinctiveness. See, e.g., Warner Bros., Inc. v. Am. Broad. Cos., 720 F.2d 231, 240 (2d Cir. 1983); 1-2 Nimmer on Copyright § 2.12. The record indicates that the Tom & Jerry publicity materials consist of just one public domain movie poster for each copyrighted short film, and the visual characteristics of Tom and Jerry in the first poster, for Puss Gets the Boot (released in 1940), are quite different from the characters popularly recognized as Tom and Jerry today. In addition, the first poster by itself reveals no distinctive character or visual traits, but only visual characteristics typical to cats and mice. As a result, the first poster is essentially a generic cat-and-mouse cartoon drawing that cannot establish independently copyrightable characters. Cf. Walker, 2008 WL 2050964 at *5-6
- ↑ Of course, the presence of distinctive qualities apart from visual appearance can diminish or even negate the need for consistent visual appearance. See, e.g., Metro-Goldwyn-Mayer, 900 F. Supp. at 1296 (holding that variations in the visual appearance of James Bond did not negate character protection in light of his many distinctive and consistently displayed character traits; the fact that “many actors can play Bond is a testament to the fact that Bond is a unique character whose specific qualities remain constant despite the change in actors”).
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