(finding a four-panel cartoon drawing featuring a personified sponge lacked the distinctiveness necessary to establish a copyrightable sponge character).
Meanwhile, the copyrighted short film that immediately followed the first poster revealed Tom and Jerry’s character traits and signature antagonistic relationship. With the benefit of these strong character traits, the first short film was sufficient to establish the copyrightable elements of the Tom and Jerry characters as depicted therein. See ante at 15-16. In such a situation, each subsequent movie poster could inject into the public domain only the increments of expression, if any, that the movie poster itself added to the already-copyrighted characters from previously released Tom & Jerry films. See Russell v. Price, 612 F.2d 1123, 1128 (9th Cir. 1979) (“[A]lthough the derivative work may enter the public domain, the matter contained therein which derives from a work still covered by statutory copyright is not dedicated to the public.”); 1-3 Nimmer on Copyright § 3.07. Because they “derive[] from a work still covered by statutory copyright,” the underlying characters of Tom and Jerry are not in the public domain until the copyrights in the Tom & Jerry short films begin to expire.
In contrast to Tom & Jerry, the record is clear that a veritable blitz of publicity materials for Gone with the Wind and The Wizard of Oz was distributed prior to the publication of each film. However, with respect to Gone with the Wind, the publicity material images are far from the cartoon-character end of the spectrum of character copyrightability. There is nothing consistent and distinctive about the publicity material images of Vivian Leigh as Scarlett O’Hara and Clark Gable as Rhett Butler. They certainly lack any cartoonishly unique physical attributes, and neither one is shown in a consistent, unique outfit and hairstyle. See Walker, 2008 WL 2050964 at *6; cf. Siegel, 542 F. Supp. 2d at 1126 (finding “a black and white leotard and cape” sufficiently distinctive to establish an element of character copyrightability). As a result, the district court correctly held that the publicity material images for Gone with the Wind are no more than “pictures of the actors in costume.” Indeed, if the publicity
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