Page:Warner Bros. Entertainment v. X One X Productions (8th Cir. 2011).pdf/17

 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.

2. The Scope of the Material Dedicated to the Public

AVELA contends that the injection of the publicity materials into the public domain simultaneously injected the film characters themselves into the public domain. To the extent that copyright-eligible aspects of a character are injected into the public domain, the character protection under the corresponding film copyrights must be limited accordingly.

As an initial matter, we reject AVELA’s contention that the publicity materials placed the entirety of the film characters at issue into the public domain. The isolated still images included in the publicity materials cannot anticipate the full range of distinctive speech, movement, demeanor, and other personality traits that combine to establish a copyrightable character. See, e.g., Gaiman, 360 F.3d at 660 (holding that the character’s “age, obviously phony title (‘Count’), what he knows and says, [and] his name” combine with his visual appearance “to create a distinctive character”); Metro-Goldwyn-Mayer, 900 F. Supp. at 1296 (citing “various character traits that are specific to Bond—i.e. his cold-bloodedness; his overt sexuality; his love of martinis ‘shaken, not stirred;’ his marksmanship; his ‘license to kill’ and use of guns; his physical strength; [and] his sophistication,” rather than his visual appearance alone, as establishing the copyrightability of the character); ''cf. Walker v. Viacom Int’l, Inc.'', 2008 WL 2050964, at *5-6 (N.D. Cal. May 13, 2008) (holding that a copyrighted cartoon consisting of “four small and largely uninformative black and white panels” that conveyed “little to no information about [the character’s] personality or character -17-