Thursday, July 7, 2011
The Eighth Circuit has sided in part with Warner Brothers in Warner Brothers v. X One X Productions. The studio sued a company that makes and sells posters of famous characters from movies, and WB alleged copyright infringement. The Court determined that, as far as the depictions of the characters in the movies was concerned, the company did infringe the studio's copyright.
It is clear that when cartoons or movies are copyrighted, a component of that copyright protection extends to the characters themselves, to the extent that such characters are sufficiently distinctive. See, e.g., Gaiman v. McFarlane, 360 F.3d 644, 661 (7th Cir. 2004) ("[A] stock character, once he was drawn and named and given speech [in a comic book series] . . . became sufficiently distinctive to be copyrightable."); Olson v. Nat'l Broad. Co., Inc., 855 F.2d 1446, 1452 (9th Cir. 1988) (holding that "copyright protection may be afforded to characters visually depicted in a television series or in a movie" for "characters who are especially distinctive"); Metro-Goldwyn-Mayer, 900 F. Supp. at 1296 (holding that plaintiffs' copyrighted James Bond films established a copyright in the character of James Bond). The district court thoroughly and accurately applied this principle to the instant case, and the parties do not contest the district court's analysis. We agree with the district court's conclusion that Dorothy, Tin Man, Cowardly Lion, and Scarecrow from The Wizard of Oz, Scarlett O'Hara and Rhett Butler from Gone with the Wind, and Tom and Jerry each exhibit "consistent, widely identifiable traits" in the films that are sufficiently distinctive to merit character protection under the respective film copyrights. See Rice v. Fox Broad. Co., 330 F.3d 1170, 1175 (9th Cir. 2003).
The film actors' portrayals of the characters at issue here appear to rely upon elements of expression far beyond the dialogue and descriptions in the books. AVELA has identified no instance in which the distinctive mannerisms, facial expressions, voice, or speech patterns of a film character are anticipated in the corresponding book by a literary description that evokes, to any significant extent, what the actor portrayed. Put more simply, there is no evidence that one would be able to visualize the distinctive details of, for example, Clark Gable's performance before watching the movie Gone with the Wind, even if one had read the book beforehand. At the very least, 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.
With respect to the cartoon characters Tom and Jerry, we note that on the spectrum of character copyrightability, the category of cartoon characters often is cited as the paradigm of distinctiveness. See, e.g., Warner Bros., Inc. v. Am. Broad. Cos., 720 F.2d 231, 240 (2d Cir. 1983); 1-2 Nimmer on Copyright § 2.12. The record indicates that the Tom & Jerry publicity materials consist of just one public domain movie poster for each copyrighted short film, and the visual characteristics of Tom and Jerry in the first poster, for Puss Gets the Boot (released in 1940), are quite different from the characters popularly recognized as Tom and Jerry today. In addition, the first poster by itself reveals no distinctive character or visual traits, but only visual characteristics typical to cats and mice. As a result, the first poster is essentially a generic cat-and-mouse cartoon drawing that cannot establish independently copyrightable characters. Cf. Walker, 2008 U.S. Dist. LEXIS 38882, 2008 WL 2050964 at *5-6 (finding a four-panel cartoon drawing featuring a personified sponge lacked the distinctiveness necessary to establish a copyrightable sponge character).
Meanwhile, the copyrighted short film that immediately followed the first poster revealed Tom and Jerry's character traits and signature antagonistic relationship. With the benefit of these strong character traits, the first short film was sufficient to establish the copyrightable elements of the Tom and Jerry characters as depicted therein. See ante at 15-16. In such a situation, each subsequent movie poster could inject into the public domain only the increments of expression, if any, that the movie poster itself added to the already-copyrighted characters from previously released Tom & Jerry films. See Russell v. Price, 612 F.2d 1123, 1128 (9th Cir. 1979) ("[A]lthough the derivative work may enter the public domain, the matter contained therein which derives from a work still covered by statutory copyright is not dedicated to the public."); 1-3 Nimmer on Copyright § 3.07. Because they "derive from a work still covered by statutory copyright," the underlying characters of Tom and Jerry are not in the public domain until the copyrights in the Tom & Jerry short films begin to expire.
In contrast to Tom & Jerry, the record is clear that a veritable blitz of publicity materials for Gone with the Wind and The Wizard of Oz was distributed prior to the publication of each film. However, with respect to Gone with the Wind, the publicity material images are far from the cartoon-character end of the spectrum of character copyrightability. There is nothing consistent and distinctive about the publicity material images of Vivian Leigh as Scarlett O'Hara and Clark Gable as Rhett Butler. They certainly lack any cartoonishly unique physical attributes, and neither one is shown in a consistent, unique outfit and hairstyle. See Walker, 2008 U.S. Dist. LEXIS 38882, 2008 WL 2050964 at *6; cf. Siegel, 542 F. Supp. 2d at 1126 (finding "a black and white leotard and cape" sufficiently distinctive to establish an element of character copyrightability). As a result, the district court correctly held that the publicity material images for Gone with the Wind are no more than "pictures of the actors in costume." Indeed, if the publicity material images from Gone with the Wind were sufficient to inject all visual depictions of the characters Scarlett O'Hara and Rhett Butler into the public domain, then almost any image of Vivian Leigh or Clark Gable would be sufficient to do so as well. Therefore, the only images in the public domain are the precise images in the publicity materials for Gone with the Wind.
James Murdoch has announced that Sunday, July 11th, will be the last day for publication of the tabloid News of the World. Below is his statement as he delivered it.
"I have important things to say about the News of the World and the steps we are taking to address the very serious problems that have occurred.
"It is only right that you as colleagues at News International are first to hear what "I have to say and that you hear it directly from me. So thank you very much for coming here and listening.
"You do not need to be told that The News of the World is 168 years old. That it is read by more people than any other English language newspaper. That it has enjoyed support from Britain's largest advertisers. And that it has a proud history of fighting crime, exposing wrong-doing and regularly setting the news agenda for the nation.
"When I tell people why I am proud to be part of News Corporation, I say that our commitment to journalism and a free press is one of the things that sets us apart. "Your work is a credit to this.
"The good things the News of the World does, however, have been sullied by behaviour that was wrong. Indeed, if recent allegations are true, it was inhuman and has no place in our Company.
"The News of the World is in the business of holding others to account. But it failed when it came to itself.
"In 2006, the police focused their investigations on two men. Both went to jail. "But the News of the World and News International failed to get to the bottom of repeated wrongdoing that occurred without conscience or legitimate purpose.
"Wrongdoers turned a good newsroom bad and this was not fully understood or adequately pursued.
"As a result, the News of the World and News International wrongly maintained that these issues were confined to one reporter. We now have voluntarily given evidence to the police that I believe will prove that this was untrue and those who acted wrongly will have to face the consequences.
This was not the only fault.
"The paper made statements to Parliament without being in the full possession of the facts. This was wrong.
"The Company paid out-of-court settlements approved by me. I now know that I did not have a complete picture when I did so. This was wrong and is a matter of serious regret.
"Currently, there are two major and ongoing police investigations. We are cooperating fully and actively with both.
"You know that it was News International who voluntarily brought evidence that led to opening Operation Weeting and Operation Elveden. This full cooperation will continue until the Police's work is done.
"We have also admitted liability in civil cases. Already, we have settled a number of prominent cases and set up a Compensation Scheme, with cases to be adjudicated by former High Court judge Sir Charles Gray.
"Apologising and making amends is the right thing to do. Inside the Company, we set up a Management and Standards Committee that is working on these issues and that has hired Olswang to examine past failings and recommend systems and practices that over time should become standards for the industry.
"We have committed to publishing Olswang's terms of reference and eventual recommendations in a way that is open and transparent.
We have welcomed broad public inquiries into press standards and police practices and will cooperate with them fully.
"So, just as I acknowledge we have made mistakes, I hope you and everyone inside and outside the Company will acknowledge that we are doing our utmost to fix them, atone for them, and make sure they never happen again.
"Having consulted senior colleagues, I have decided that we must take further decisive action with respect to the paper.
"This Sunday will be the last issue of the News of the World. Colin Myler will edit the final edition of the paper.
"In addition, I have decided that all of the News of the World's revenue this weekend will go to good causes.
"While we may never be able to make up for distress that has been caused, the right thing to do is for every penny of the circulation revenue we receive this weekend to go to organisations - many of whom are long-term friends and partners - that improve life in Britain and are devoted to treating others with dignity.
"We will run no commercial advertisements this weekend. Any advertising space in this last edition will be donated to causes and charities that wish to expose their good works to our millions of readers.
"These are strong measures. They are made humbly and out of respect. I am convinced they are the right thing to do.
"Many of you, if not the vast majority of you, are either new to the Company or have had no connection to the News of the World during the years when egregious behaviour occurred
"I can understand how unfair these decisions may feel. Particularly, for colleagues who will leave the Company. Of course, we will communicate next steps in detail and begin appropriate consultations.
"You may see these changes as a price loyal staff at the News of the World are paying for the transgressions of others.
"So please hear me when I say that your good work is a credit to journalism. I do not want the legitimacy of what you do to be compromised by acts of others.
"I want all journalism at News International to be beyond reproach. I insist that this organisation lives up to the standard of behaviour we expect of others. And, finally, I want you all to know that it is critical that the integrity of every journalist who has played fairly is restored.
"Thank you for listening."
Wednesday, July 6, 2011
The phone hacking at News of the World may have been much worse than we previously thought. Reports are flooding in that reporters at the tabloid may have hacked into the phones of victims and victims' families of the 7/07 terror attacks and of a young murder victim. Meanwhile, Rupert Murdoch, head at News International, owner of NOTW, says such hacking, if it happened, is "deplorable and unacceptable" and that he has appointed Joel Klein to head up an investigation. The New York Times weighs in here with an editorial.
Tuesday, July 5, 2011
Interesting but understandable decision by the Casey Anthony jury not to speak to the media at this time. Their decision comes after presiding Judge Perry told them specifically after they rendered their verdict, that they had the right not to speak to the media, or to anyone, who asked about the content of their deliberations or their decision. Judge Perry is not releasing the names of the jurors at this time. More here on the trial and the verdict here from the New York Times and CNN.
Monday, July 4, 2011
From the New York Times, a discussion of how tv rights factor into the battle over ownership of the Los Angeles Dodgers.
A new book on The Music Trade in Georgian England from Ashgate Publishing. It is edited by Michael Kessler. Here's a description from Ashgate's website.
In contrast to today's music industry, whose principal products are recorded songs sold to customers round the world, the music trade in Georgian England was based upon London firms that published and sold printed music and manufactured and sold instruments on which this music could be played. The destruction of business records and other primary sources has hampered investigation of this trade, but recent research into legal proceedings, apprenticeship registers, surviving correspondence and other archived documentation has enabled aspects of its workings to be reconstructed.
The first part of the book deals with Longman & Broderip, arguably the foremost English music seller in the late eighteenth century, and the firm's two successors – Broderip & Wilkinson and Muzio Clementi's variously styled partnerships – who carried on after Longman & Broderip's assets were divided in 1798. The next part shows how a rival music seller, John Bland, and his successors, used textual and thematic catalogues to advertise their publications. This is followed by a comprehensive review of the development of musical copyright in this period, a report of efforts by a leading inventor, Charles 3rd Earl Stanhope, to transform the ways in which music was printed and recorded, and a study of Georg Jacob Vollweiler's endeavour to introduce music lithography into England.
The book should appeal not only to music historians but also to readers interested in English business history, publishing history and legal history between 1714 and 1830.