Warner Brothers Entertainment v. One X Productions

Warner Brothers Entertainment (WB) (plaintiff) owned the copyrights to several Tom & Jerry (T&J) short films, The Wizard of Oz (Oz), and Gone With the Wind (GWW). Publicity materials were distributed for Oz and GWW before the films’ releases, including movie posters and other materials containing still photographs of the films’ characters. Movie posters were also created for each of the T&J short films. Characters from Oz, including Dorothy, were depicted in several variations. GWW’s characters were shown in various outfits and hairstyles. The first T&J poster included pictures of the characters as a generic cat and mouse. None of the films’ promotional materials contained a copyright notice, as required under the 1909 Copyright Act, and thus none of the publicity materials had federal copyright protection. A.V.E.L.A., Incorporated (AVELA) (defendant) obtained restored versions of the original promotional materials and began to license products using images extracted from those materials. Some of AVELA’s products used promotional images in their entireties; some used portions of images; and some used combinations of separate promotional images, such as combining Dorothy from one poster with the Yellow Brick Road from another. Products included T-shirts, lunch boxes, and three-dimensional figures like statutes. WB filed for a permanent injunction, and the district court granted the injunction. AVELA appealed.