If a drunken old bum were a copyrightable character, so would be a drunken suburban housewife, a gesticulating Frenchman, a fire-breathing dragon, a talking cat, a Prussian officer who wears a monocle and clicks his heels, a masked magician, Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1175-76 (9th Cir. 2003), and, in Learned Hand’s memorable paraphrase of Twelfth Night, “a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress.” Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930). It would be difficult to write successful works of fiction without negotiating for dozens or hundreds of copyright licenses, even though such stereotyped characters are the products not of the creative imagination but of simple observation of the human comedy.
Gaiman, 360 F.3d at 660. While the overly broad characters would be in the public domain rather than copyrighted in the instant case, the analysis of the copyrightability of a character must be the same in either case. See Silverman, 870 F.2d at 50. We conclude that the characters’ visual appearances in the publicity materials for The Wizard of Oz do not present the requisite consistency to establish any “copyrightable elements” of the film characters’ visual appearances. Therefore, once again, the only images in the public domain are the precise images in the publicity materials for The Wizard of Oz.
3. AVELA’s Use of the Public Domain Images
We held above that no visual aspects of the film characters in Gone with the Wind and The Wizard of Oz are in the public domain, apart from the images in the publicity materials themselves. Therefore, any visual representation that is recognizable as a copyrightable character from one of these films, other than a faithful copy of a public domain image, has copied “original elements” from the corresponding film. See Taylor, 403 F.3d at 962-63. We must examine the AVELA products based on The Wizard of Oz and Gone with the Wind to determine which ones
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