Can Warner Bros. Stop Others From Using 'Wizard of Oz' Characters?

James Franco will soon look to rebound from his critically-drubbed stint as co-host of the Oscars by starring in Sam Raimi’s Oz, The Great and Powerful, a prequel of sorts to The Wizard of Oz. By one count last year, there were an amazing nine Oz-related films in development at various studios.Raimi's version will be for Disney and is said to be about a carnival worker who gets mistaken for a wizard in the magical land of Oz. Meanwhile, Warner Bros. and its subsidiaries have other versions in the works, including a straight retelling of the 1939 film classic starring Judy Garland.

With so many potentially competing versions, there could be legal intrigue about which characters are copyrighted and which ones aren't. As such, a case about to be heard before the Eight Circuit Court of Appeals could have some significance.

Warner Bros. holds the rights to the classic film and attempted to stop a merchandiser who was selling t-shirts and other items showing the the film's well-known characters with catchy slogans like "There's No Place Like Home." But of course, the 1939 film was itself based on L. Frank Braum's novel released in 1900 entitled The Wonderful Wizard of Oz. That book is now in the public domain.

A district court previously ruled that the defendant, X One X Prods, had violated the studio's intellectual property by using images from the movie and its publicity posters, and the defendants are now arguing on appeal they should be able to use images of the Oz characters so long as they are from the public domain.

Given the different films in the pipeline, it might be instructive to learn how the appeals court separates what's copyrighted material versus what's out of copyright. The case also merits note as an example of Warner Bros. going to the mat to defend its turf just as various other studios prepare to enter the land of Oz.