In an interesting case involving The Wizard of Oz, Gone With The Wind, and "Tom & Jerry," the Court of Appeals for the Eighth Circuit held that A.V.E.L.A., Inc. ("A.V.E.L.A.") infringed on Warner Bros. copyrighted materials. The court held that public domain print materials may be exactly reproduced in print form, without violation of copyright laws, but modifying those public domain works or transforming them into three dimensional objects may infringe the copyrights in related non-public domain works.

Warner Bros. asserted ownership pf The Wizard of Oz and Gone with the Wind and "Tom & Jerry" short films. Before the films were completed and copyrighted, publicity materials featuring images of the actors in costume posed on the film sets were distributed to theaters. The images in the publicity materials were not drawn from the film footage that was used in the films; rather, they were created independently by photographers and artists. The publicity materials, such as movie posters, lobby cards, still photographs, and press books, did not comply with the applicable copyright notice requirements of the 1909 Copyright Act. As a result, Warner Bros. has no registered federal copyrights in the publicity materials themselves. A.V.E.L.A. acquired restored versions of the publicity materials, and extracted the images of famous characters from the films for use on various merchandise. In many cases, A.V.E.L.A. modified the images by adding a character's signature phrase from the movie to an image modeled on that character's publicity photograph, or combined images extracted from different items of publicity material into a single product. In one example, a publicity photograph of Dorothy posed with Scarecrow serves as the model for a statuette and another publicity photograph of the "yellow brick road" serves as the model for the base of that same statuette.

The court of appeals concluded that the publicity materials were in the public domain. As such, A.V.E.L.A.'s two-dimensional reproductions of the publicity materials did not constitute a copyright infringement. However, the court held that A.V.E.L.A. products combining extracts from the public domain materials in a new arrangement infringed the copyright in the corresponding film. Additionally, A.V.E.L.A.'s three dimensional products (action figures, figurines, water globes) were infringing uses of the "further delineation of the characters" contained in the feature-length films. 

TIP:  Advertisers who wish to use public domain elements should exercise caution when using such material. Public domain material could infringe the copyright in a later work to the extent that it incorporates aspects of characters developed in the later work.