The second category comprises AVELA products that each juxtapose an image extracted from an item of publicity material with another image extracted from elsewhere in the publicity materials, or with a printed phrase from the book underlying the subject film, to create a new composite work. Even if we assume that each composite work is composed entirely of faithful extracts from public domain materials, the new arrangement of the extracts in the composite work is a new increment of expression that evokes the film character in a way the individual items of public domain material did not. For example, the printed phrase “There is no place like home” from the book The Wizard of Oz and a publicity material image of Judy Garland as Dorothy, viewed side by side in uncombined form, are still two separate works, one literary and one a picture of an actor in costume. In contrast, a T-shirt printed with the phrase “There’s no place like home” along with the same image of Judy Garland as Dorothy is a new single work that evokes the film character of Dorothy much more strongly than the two separate works.[1] Because “the increments of expression added [to the public domain materials] by the films are protectable,” one making a new work from public domain materials infringes “if he copies these protectable increments.” Silverman, 870 F.2d at 50. Like the juxtaposition of an image and a phrase, a composite work combining two or more separate public-domain images (such as Judy Garland as Dorothy combined with an image of the Emerald City) also adds a new increment of expression of the film character that was not present in the separate images. Accordingly, products combining extracts from the public domain materials in a new arrangement infringe the copyright in the corresponding film. We affirm the district court’s grant of summary judgment to
- ↑ Many of the phrases drawn from the underlying books are modified to some degree in the corresponding films, such as contracting “There is” to “There’s” in the cited example. The parties dispute whether such modified phrases are original to the films, and thus within the scope of the film copyrights, or still recognizable as phrases drawn from the books, and thus outside the scope of the film copyrights. We need not resolve that question because we hold that, even if the phrases taken alone are outside the scope of the film copyrights, the juxtaposition of the phrases with images from the publicity materials is an infringement of the film copyrights.
-25-
