three-dimensional product makes impermissible use of the “further delineation of the characters contained in” the feature-length films. See Silverman, 870 F.2d at 50. Accordingly, we also affirm the district court’s grant of summary judgment to Warner Bros. with respect to The Wizard of Oz and Gone with the Wind and the permanent injunction for this category of products.
We also held above that the characters of Tom and Jerry are not in the public domain. In addition, because the characters achieved copyright protection through the short films before all but the first movie poster entered the public domain, and the later movie posters necessarily exhibit those characters, even the use of any movie poster but the first requires Warner Bros.’s authorization. See Russell, 612 F.2d at 1128 (“Therefore, since exhibition of the film ‘Pygmalion’ necessarily involves exhibition of parts of Shaw’s play, which is still copyrighted, plaintiffs here may prevent defendants from renting the film for exhibition without their authorization.”). Warner Bros. has granted such authorization to the extent it has averred that it will not challenge the reproduction of movie “posters as posters (or lobby cards as lobby cards).”
Therefore, AVELA may use the first Tom & Jerry poster, for the short film Puss Gets the Boot, in the fashion described above for the publicity materials for Gone with the Wind and The Wizard of Oz. Accordingly, with respect to Tom & Jerry products based on the first publicity poster, we modify the district court’s grant of summary judgment and the permanent injunction to be consistent with the three categories of products described above for Gone with the Wind and The Wizard of Oz. With respect to all later Tom & Jerry posters, AVELA is authorized to make faithful reproductions, but not to reproduce those movie poster images on other products or to make derivative works based on Tom and Jerry. Accordingly, we affirm the grant of summary judgment to Warner Bros. and the permanent injunction crafted by the district court with respect to all other Tom & Jerry products.
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