The Wizard of Oz, Gone with the Wind, Movie Posters, and Public Domain

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Apr 22, 2017

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TrademarkA long-running dispute over art from a vintage movie poster has finally ended with a victory for the Warner Bros. movie studio.

Warner holds the registered copyrights for the movie versions of The Wizard of Oz and Gone with the Wind and for the Tom and Jerry cartoons.

Warner also owns trademarks for various images, characters, character names, phrases, and symbols from these works. X One X Productions, A.V.E.L.A., Inc., Art-Nostalgia.com, Inc., and Leo Valencia (collectively, “AVELA”) obtained movie posters and lobby cards for the movies and “extracted” images of characters like Dorothy, the Tin Man, and Scarlett O’Hara.

Lunch Boxes and Playing Cards

As the Hollywood Reporter reported, AVELA then licensed those images for use on products such as shirts, lunch boxes, and playing cards.

In some cases, the photos were used next to catch phrases from the movies. For example, a photo of Clark Gable as Rhett Butler would appear next to his line “Frankly, my dear, I don’t give a damn.” Warner sued in 2006, asserting copyright and trademark infringement.

Public Domain?

AVELA claimed that the images were in the public domain. The original posters had been distributed without copyright notices. Given the law at the time (more than 60 years ago), the copyright has since lapsed.

In 2011, the 8th Circuit Court of Appeals rejected AVELA’s argument, finding that:

the scope of the film copyrights covers all visual depictions of the film characters at issue, except for any aspects of the characters that were injected into the public domain by the publicity materials.

Thus, the court found that AVELA had the right to reprint the old posters in their entirety, but not to extract and re-use images from the posters.

The case went back to a lower court, which awarded statutory damages of $10,000 for each of the 257 copyrighted works involved — $2,570,000 in total.

AVELA had claimed that it earned only $70,390 from the infringement, but Variety reported that the district court didn’t buy that.

Statutory Damages

In a copyright infringement case, the copyright owner can choose whether to get actual damages suffered and any profits of the infringer, or statutory damages.

Statutory damages can be no less than $750 and no more than $30,000 for each act of infringement.

If the infringement was “willful,” statutory damages can be increased to $150,000.

For example, one illegal copy can be considered an “act of infringement.”

The judge also enjoined AVELA from any further licensing of the extracted images or phrases from the movies or cartoons.

AVELA appealed again. On the trademark issue, the 8th Circuit noted that:

The district court found and AVELA did not dispute that Warner holds registered trademarks in iconic phrases and names from the films and has used the character images for trademark purposes on a host of consumer goods for many years.

The court then affirmed the lower court’s judgment in favor of Warner and the award of damages.

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