Page:Warner Bros. Entertainment v. X One X Productions (8th Cir. 2011).pdf/19

 in the announcements, not through the additional perspective of the later, more developed work.

In the instant case, the only “copyrightable elements” in the publicity materials (albeit injected into the public domain, rather than registered for copyright) are even more limited than in Siegel. While the promotional announcements in Siegel at least showed proto-Superman holding a car over his head, establishing a distinguishing characteristic of “extraordinary strength,” the publicity materials here reveal nothing of each film character’s signature traits or mannerisms. At most, the publicity materials could have injected some of the purely visual characteristics of each film character into the public domain, akin to the character in “a black and white leotard and cape.” Id.

Because we must rely solely on visual characteristics, the individuals shown in the publicity materials establish “characters” for copyright purposes only if they display “consistent, widely identifiable” visual characteristics. See Rice, 330 F.3d at 1175. The Walker case is instructive in this regard. There, the plaintiff asserted his copyright in a comic strip entitled “Mr. Bob Spongee, The Unemployed Sponge” against the producers of the animated television series “SpongeBob SquarePants.” 2008 WL 2050964 at *1. The plaintiff had created sponge dolls based on his comic strip and placed advertisements in a newspaper. Id. Because these materials revealed “little to no information about Mr. Bob Spongee’s personality or character traits,” id. at *5, the court could look only to his visual appearance for distinctiveness. The court held that in such a situation, a consistent visual appearance throughout the materials was a prerequisite for character protection. See id. at *5-6. Because of variations in the sponge’s clothing, color, eye and nose shape, and hair among the comic strip, -19-