Page:Warner Bros. Entertainment v. X One X Productions (8th Cir. 2011).pdf/16

 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).

AVELA correctly points out that the scope of copyright protection for the characters in the films The Wizard of Oz and Gone with the Wind is limited to the increments of character expression in the films that go beyond the character expression in the books on which they were based. See Silverman, 870 F.2d at 49 (“[C]opyrights in derivative works secure protection only for the incremental additions of originality contributed by the authors of the derivative works.”). While true, this has little practical effect in the instant case, as a book’s description of a character generally anticipates very little of the expression of the character in film:

The reason is the difference between literary and graphic expression. The description of a character in prose leaves much to the imagination, even when the description is detailed—as in Dashiell Hammett’s description of Sam Spade’s physical appearance in the first paragraph of The Maltese Falcon. “Samuel Spade’s jaw was long and bony, his chin a jutting v under the more flexible v of his mouth. His nostrils curved back to make another, smaller, v. His yellow-grey eyes were horizontal. The v motif was picked up again by thickish brows rising outward from twin creases above a hooked nose, and his pale brown hair grew down—from high flat temples—in a point on his forehead. He looked rather pleasantly like a blond satan.” Even after all this, one hardly knows what Sam Spade looked like. But everyone knows what Humphrey Bogart looked like.

Gaiman, 360 F.3d at 660-61.

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,  -16-