Page:Warner Bros. Entertainment v. X One X Productions (8th Cir. 2011).pdf/2

 GRUENDER, Circuit Judge.

A.V.E.L.A., Inc., X One X Productions, and Art-Nostalgia.com, Inc. (collectively, “AVELA”) appeal a permanent injunction prohibiting them from licensing certain images extracted from publicity materials for the films Gone with the Wind and The Wizard of Oz, as well as several animated short films featuring the catand-mouse duo “Tom & Jerry.” The district court issued the permanent injunction after granting summary judgment in favor of Warner Bros. Entertainment, Inc., Warner Bros. Consumer Products, Inc., and Turner Entertainment Co. (collectively, “Warner Bros.”) on their claim that the extracted images infringe copyrights for the films. For the reasons discussed below, we affirm in part, reverse in part, and remand for appropriate modification of the permanent injunction.

I. BACKGROUND

Warner Bros. asserts ownership of registered copyrights to the 1939 MetroGoldwyn-Mayer (“MGM”) films The Wizard of Oz and Gone with the Wind. Before the films were completed and copyrighted, publicity materials featuring images of the actors in costume posed on the film sets were distributed to theaters and published in newspapers and magazines. The images in these publicity materials were not drawn from the film footage that was used in the films; rather, they were created independently by still photographers and artists before or during production of the films. The publicity materials, such as movie posters, lobby cards, still photographs, and press books, were distributed by the original rights-holder, MGM’s parent company Loew’s, Inc., and did not comply with the copyright notice requirements of the 1909 Copyright Act, 17 U.S.C. §§ 1 et seq. (1976) (superseded effective 1978). Warner Bros. also asserts ownership of registered copyrights to various animated  -2-