In an interesting decision, the 8th Circuit today largely upheld an injunction against AVELA (yes, the folks from the infamous Betty Boop case I previously blogged and wrote about) prohibiting it from selling certain items bearing reproductions of Tom & Jerry and characters from the Wizard of Oz.
In Warner Bros. Entertainment, Inc. v. X One X Productions, No. 10-1743 (8th Cir. July 5, 2011), the films featuring these characters were copyrighted, but certain pre-film publicity photos and drawings of the characters were not. The issue was whether, and to what extent, the public domain status of the pre-film publicity photographs and drawings of the characters immunized AVELA from reproducing both exact duplicates and tweaked reproductions. The court's analysis focused on whether the tweaked aspects of the AVELA reproductions were derived from aspects of the characters developed in the films themselves.