Page:Warner Bros. Entertainment v. X One X Productions (8th Cir. 2011).pdf/22

 material images from Gone with the Wind were sufficient to inject all visual depictions of the characters Scarlett O’Hara and Rhett Butler into the public domain, then almost any image of Vivian Leigh or Clark Gable would be sufficient to do so as well. Therefore, the only images in the public domain are the precise images in the publicity materials for Gone with the Wind.

The characters in The Wizard of Oz lie closer to the cartoon-character end of the spectrum. There are many stylized aspects to the visual appearances of Scarecrow, Tin Man, and Cowardly Lion, and they perhaps might be considered as live-action representations of cartoon characters. Dorothy, while not so thoroughly stylized, wears a somewhat distinctive costume and hairstyle. However, a close examination of the record reveals that these potentially distinctive visual features do not appear in a consistent fashion throughout the publicity materials. For example, in the publicity materials, Judy Garland as Dorothy sometimes wears a red dress and bow and black slippers, rather than the distinctive blue dress and bow and ruby slippers of the film, and her hairstyle also varies. From image to image, Scarecrow’s costume color ranges from yellow to blue to black, Cowardly Lion’s from light yellow to very dark brown, and Tin Man’s from shiny silver to a dull blue-gray. Moreover, there are publicity material images in which other stylized elements of the characters’ costumes and faces are significantly different from the look used in the film. For example, in some images Tin Man’s face appears metallic, and in others it appears flesh-colored. If the publicity material images for The Wizard of Oz were held to establish the visual elements of copyrightable characters, their scope would encompass almost any character who wears a scarecrow or lion costume, and a wide range of little girl and silver robotic costumes as well, creating an unacceptable result:  -22-