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In 1900, L. Frank Baum wrote the famous children’s novel, The Wonderful Wizard of Oz. It’s easy to assume that since the book was published more than 110 years ago, the characters of Dorothy, the Scarecrow, the Cowardly Lion and the rest are safely in the public domain.
Or so Hollywood hopes. Many movie studios are in the midst of re-adapting the classic. But the truth about what’s in the public domain and what’s not may be a little murky, thanks to a decision on Tuesday by the Eighth Circuit Court of Appeals.
Warner Bros. owns the rights to the 1939 MGM movie, The Wizard of Oz, starring Judy Garland.
Five years ago, the studio sued AVELA, which specializes in nostalgia merchandise. The defendant had acquired restored versions of the movie posters and lobby cards for Wizard of Oz, Gone with the Wind and several Tom & Jerry short films. AVELA extracted images of the famous characters from the films and put them on shirts, lunch boxes, music box lids, playing cards and more. Warners claimed copyright infringement.
At the district court level, Warners won summary judgment and got an injunction. This hard-fought case eventually landed at the Eighth Circuit, whose job it was to figure out what was copyrighted and what was in the public domain.
On certain elements, Warner loses. The justices agree with AVELA that because the publicity materials were made available some 70 years ago without copyright notice and without instructions to return or destroy, they were injected into the public domain. The Eighth Circuit thus lifts an injunction on certain items, such as any faithful reproduction of Tom & Jerry posters.
However, Warners may have won a much bigger point, and the decision has the potential to impact everything we think we know about the public domain, as well as several Wizard of Oz remakes currently in development.
In essence, the panel of justices finds that the features of film characters can be copyrighted even if these characters were based on prior work. According to the decision:
“We agree with the district court’s conclusion that Dorothy, Tin Man, Cowardly Lion, and Scarecrow from The Wizard of Oz, Scarlett O’Hara and Rhett Butler from Gone with the Wind, and Tom and Jerry each exhibit “consistent, widely identifiable traits” in the films that are sufficiently distinctive to merit character protection under the respective film copyrights….Put more simply, there is no evidence that one would be able to visualize the distinctive details of, for example, Clark Gable’s performance before watching the movie Gone with the Wind, even if one had read the book beforehand. At the very least, the scope of the film copyrights covers all visual depictions of the film characters at issue, except for any aspects of the characters that were injected into the public domain by the publicity materials.”
We’ve boldfaced the part that’s likely to cause some discussion among Hollywood lawyers. As we noted in our past article on this topic, there are nine Wizard of Oz projects currently in development, by one count, including a big-budget 3D film by Disney directed by Sam Raimi and starring James Franco that’s meant to be a prequel to the classic film.
Might these films have to be very, very careful going forward?
One lawyer believes so.
“The court’s statement that the film copyrights cover ‘all visual depictions’ of the characters recognizes that there is often a quintessential version of a literary character that exists in the public’s mind as a result of a popular film adaption,” says Aaron Moss, the chair of litigation at Greenberg Glusker. ” Any filmmaker that wants to create a new version of a literary work — even one in the public domain — needs to be careful not to use copyrightable elements of characters that first appear in protected motion picture versions of the works. Of course, when it comes to characters depicted by live actors, this may be easier said than done.”
In the decision, the Eighth Circuit affirms “in large part” the lower court’s ruling and permanent injunction.
In a statement, Warner Bros. said, “”We are gratified by the court of appeals’ ruling affirming the lower court’s grant of summary judgment in our favor.”
Asked if the studio intends to use this decision to get tough on any of Wizard of Oz films currently in development, Warner Bros. said it has nothing to add at this time.
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