Copyright law is an inherent aspect of the most individual and valued of democratic rights: creativity. It protects the rights of the creative, provides art to the public, and promotes further development of society. Naturally, such a vast area of law has ambiguities and shortcomings. This Note analyzes the newest of these ambiguities-visual depictions in copyright law-in the recent Eighth Circuit case of Warner Bros. Entertainment, Inc. v. X One X Productions.1
The copyrightability of visual depictions remains an underdeveloped subset of copyright law. In the Warner Bros. decision, the Eighth Circuit attempted to clarify which visual elements of popular classic films are under copyright and which elements are available through the public domain.2 However, the case served less as a clarification and more as an avenue to further questions and litigation.
To fully recognize the impact of Warner Bros., an understanding of the development of copyright law is necessary. Therefore, Part II of this Note outlines the history of copyright law and how it developed into the substantial body of law that exists today. This includes the different rights preserved for copyright owners, defenses against infringement, and the state of the law prior to and following the Warner Bros. decision. Part III analyzes the Eighth Circuit's opinion, particularly noting the inconsistencies with prior case law. Finally, Part IV looks at the impact of this decision on movie producers and film companies as well as the need for further clarification of the law.
Before diving into the impact of Warner Bros. v. X One X, it is important to understand the history and development of copyright law. Part II.A provides a brief history of copyright law, from Article I, Section 8, cl. 8 of the Constitution to the 1998 Digital Millennium Copyright Act. As the disputed works in Warner Bros. are essentially derivative works,3 Part II.B defines derivative works and the rules regarding their creation. Part II.C explains the importance of the public domain and what types of works are available outside of copyright, and Part II.D looks at the very common defense of fair use in copyright infringement suits. Finally, Part II.E discusses the Warner Bros. case itself, explaining the history of the works in question, the parties' arguments, and the ultimate Eighth Circuit decision.
A. Brief History of Copyright Law
Copyright is defined as "the exclusive right of printing or otherwise multiplying copies of an intellectual production, and of publishing and vending the same; the right of preventing all others from doing so."4 The importance of copyright law in society is manifested by its inclusion in Article I of the U.S. Constitution, making U.S. copyright law as old as the country itself.5 The Patent and Copyright Clause of the U.S. Constitution states that "Congress shall have the power . . . [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."6
Congress enacted the first Copyright Act in 1790 (1790 Copyright Act) "for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies."7 The first Act limited copyrights specifically to maps, charts, and books.8 In addition, copyright holders had the sole right to print, reprint, publish, or vend the copyrighted material for 14 years, starting from the time the clerk of the district court recorded the copyright.9 The copyright owner could extend the copyright for an additional 14 years, provided the owner recorded the copyright for a second time at least six months prior to the expiration of the first term.10 Infringement of copyright under the original 1790 Copyright Act was punishable by forcing the offender to "forfeit all and every copy and copies" of the copyrighted material and pay a fine of "fifty cents for every sheet which shall be found in his or their possession. …