display “increments of expression,” Silverman, 870 F.2d at 50, of the film characters beyond the “pictures of the actors in costume” in the publicity materials. The AVELA products in the record can be analyzed in three categories.
The first category comprises AVELA products that each reproduce one image from an item of publicity material as an identical two-dimensional image. While Warner Bros. does not challenge the reproduction of movie “posters as posters (or lobby cards as lobby cards),” it does challenge the reproduction of a single image drawn from a movie poster or lobby card on T-shirts, lunch boxes, music box lids, or playing cards, for example. We read the district court’s permanent injunction to follow Warner Bros.’s distinction, forbidding all uses except the reproduction of items of publicity material “in their entirety.” However, no 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.[1] Similarly, Warner Bros. presents no reasoned argument as to why the reproduction of one smaller contiguous portion of an image from an item of publicity material, rather than the entirety of the image from that item, would add an increment of expression of the film character. As a result, products that reproduce in two dimensions any one portion of an image from any one item of publicity material, without more, do not infringe Warner Bros.’s copyright. For products in this category, we reverse the grant of summary judgment to Warner Bros. with respect to The Wizard of Oz and Gone with the Wind and direct the entry of summary judgment for AVELA. We also vacate the permanent injunction to the extent it applies to products in this category.
- ↑ This principle 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.
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