I’ll Get You (for Copyright), My Pretty!

By Sarah Berent

The 1939 classic film The Wizard of Oz, based on the first novel of L. Frank Baum’s Oz series, is so beloved, so intertwined with our popular culture that it’s hard to envision another version or even sequel or prequel without thinking of the world the original film created. Judy Garland is and forever will be Dorothy; same for Frank Morgan as Oz, Bert Lahr as the Cowardly Lion, and so on.

There are nine Wizard of Oz-related projects in development, which is due both to the quality of the material and to all fourteen books in Baum’s Oz series residing comfortably in the public domain — that is, the books are no longer protected by copyright laws and anyone has the right to recreate the stories in any medium.

Yet the 1939 film is firmly protected by copyright. Warner Brothers currently holds the rights and as Eriq Gardner of the Hollywood Reporter Esq. reported, the studio is willing to vigorously defend its interests in the film. In 2009, Warner Brothers successfully sued a company that used images from the movie’s 1939 publicity posters to make t-shirts for copyright infringement.

What does this mean for all of the other Wizard of Oz-related films in the studio pipelines? (The most anticipated being Disney’s version: the Sam Raimi directed Oz: The Great and Powerful with James Franco attached.) Will they be able to use or reference Dorothy and friends without triggering a copyright infringement lawsuit from Warner Brothers?

Other blogs questioned whether these characters can even be copyrighted at all, because the underlying material, the Oz book series, is in the public domain.

The 1939 movie version of the Wizard of Oz enjoys copyright protection as a “derivative work” which is “a work based upon one or more preexisting works” because the film is based on Baum’s novel, The Wonderful Wizard of Oz. This means that copyright protection in the 1939 movie only extends to what is original to the movie itself and not what was taken from the books. Other films can use the characters of Dorothy, Scarecrow, Tin Man, etc. as portrayed in Baum’s series, but anything the movie version created on its own such as original dialogue, unique set designs and plot changes are all protected under Warner Brother’s copyright in the film.

A helpful case that explains this concept is Harvey Cartoons v. Columbia Pictures Industries, Inc. There, the publisher of Casper comic books sued the studio behind the 1984 blockbuster Ghostbusters for copyright infringement over the alleged copying of its original character Fatso, one third of the comic’s Ghostly Trio. Copyright protection first extended to Fatso when Harvey Cartoons introduced him in 1954 but the renewal certificate was never filed. (Works created prior to the 1978 Copyright Act had to be renewed with the Copyright Office after the first twenty-eight years to remain valid.) Fatso, and the rest of the ghostly trio, including Casper, were unprotected, and haunted the public domain.

Columbia released mega-hit Ghostbusters in 1984 and the movie’s great success allowed the studio to enter into lucrative merchandising deals, plastering the now-famous Ghostbuster logo on everything from t-shirts to soda cans. Harvey Cartoons believed the ghost in the movie’s logo too closely resembled Fatso and sued for infringement. The cartoonists tried to circumvent their expired copyright by arguing that because subsequent comic books which included Fatso storylines had valid copyrights, the Fatso character should still be protected – even if his initial copyright expired.

The Southern District of New York didn’t buy this argument. The character of Fatso remains in the public domain. And because the ghost’s physical appearance had not changed throughout the years, there was nothing original added to actually copyright.

The court stressed that the derivative copyrights in the storylines of the later comic books featuring Fatso could not deny others from using a ghost identical to Fatso. The court stated that “[t]hese copyrights cannot ‘affect or enlarge the scope [or] duration’ of copyright protection for the artwork which has long since entered the public domain.”

With these principles in mind, consider these little known facts about the original movie, The Wizard of Oz. The screenwriter changed Dorothy’s slippers color from silver (as originally in Baum’s book) to their iconic ruby red. And the film’s famous ending, with the Oz characters (the Scarecrow, Tinman, Lion, etc) appearing in Kansas signifying Oz had been a dream, is a departure from the book.

So even if Warner Brothers cannot prevent a rival studio from producing another Wizard of Oz movie following the same plotline as Baum’s first novel (because the novel is in the public domain), the studio can (and did) demand royalty payments if the subsequent movie has Dorothy wearing ruby slippers.

All of Baum’s Oz-related books are fair game for movies, television, theater and the like. To avoid mandatory royalty payments and/or copyright infringement lawsuits, film studios must either stay true to the author’s words or come up with their own twists to avoid going down the yellow brick road to copyright infringement.

UPDATE:  July 7 — We told them to be careful!




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