Page:Warner Bros. Entertainment v. X One X Productions (8th Cir. 2011).pdf/18

 traits” was insufficient to establish copyright protection of the character). Nevertheless, the publicity materials could have placed some aspects of each character’s visual appearance into the public domain.

A situation somewhat similar to the one we face was presented in Siegel v. Warner Bros. Entm’t Inc., 542 F. Supp. 2d 1098 (C.D. Cal. 2008). The defendants owned the copyright in two promotional announcements for Superman comics, published before the first Superman comic book was issued. The black-and-white promotional announcements each included an image of the protagonist “wearing some type of costume” and “holding aloft a car.” Id. at 1126. The defendants argued that their copyright in the promotional announcements gave them rights over the entirety of the Superman character as later developed (and copyrighted separately) in the comic book. The court disagreed, stating:

[N]othing concerning the Superman storyline (that is, the literary elements contained in Action Comics, Vol. 1) is on display in the ads; thus, Superman’s name, his alter ego, his compatriots, his origins, his mission to serve as a champion of the oppressed, or his heroic abilities in general, do not remain within defendants sole possession to exploit. Instead the only copyrightable elements left [to defendants] arise from the pictorial illustration in the announcements, which is fairly limited.

Id. (emphasis added). As a result, the scope of the promotional announcements encompassed only the limited character of “a person with extraordinary strength who wears a black and white leotard and cape.” Id. Despite the earlier publication of the promotional announcements, the copyright in the later comic book nevertheless encompassed the fully developed character with “Superman’s distinctive blue leotard (complete with its inverted triangular crest across the chest with a red “S” on a yellow background), a red cape and boots, and his superhuman ability to leap tall buildings, repel bullets, and run faster than a locomotive, none of which is apparent from the announcement.” Id. Importantly, the scope of the character copyrighted through the promotional announcements was viewed on the strict basis of what was clearly visible -18-