Page:Warner Bros. Entertainment v. X One X Productions (8th Cir. 2011).pdf/13

 C. Copyright Infringement and the Right to Make Use of Public Domain Materials

The elements of copyright infringement are (1) ownership of a valid copyright and (2) copying of original elements of the copyrighted work. Taylor, 403 F.3d at 962-63. As discussed above, Warner Bros. has established ownership of valid copyrights in the movies and animated shorts. Copying can be shown either by (1) direct evidence of copying, or (2) access to the copyrighted material and substantial similarity between the AVELA work and the copyrighted work. Id. at 964. There is no dispute that AVELA had access to the films in question, each of which has a long history of popularity. ''See, e.g., Metro-Goldwyn-Mayer, Inc. v. Am. Honda Motor Co.'', 900 F. Supp. 1287, 1297 (C.D. Cal. 1995) (“[T]he sheer worldwide popularity and distribution of the Bond films allows the Court to indulge a presumption of access.”). In addition, there is no dispute that the images in the AVELA works are substantially similar to the images in the copyrighted films, as they are in fact images of the same people in the same costumes (or, in the case of Tom and Jerry, of the same cartoon characters). The only remaining question is whether AVELA has appropriated “original elements” of the films, see Taylor, 403 F.3d at 962-63, or solely elements that are in the public domain.

Warner Bros. does not challenge the products that are exact reproductions of an entire item of publicity material. Instead, Warner Bros. contends that AVELA has extracted images from the public domain materials and used them in new ways that infringe the copyrights in the associated films. AVELA admits that it has used the images in new ways (and indeed has applied for its own copyrights for such derivative works), but it counters that there is no limitation on the public’s right to modify or make new works from public domain materials.

AVELA is correct that, as a general proposition, the public is not limited solely to making exact replicas of public domain materials, but rather is free to use public  -13-