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I. INTRODUCTION
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.
II. BACKGROUND
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,...