Friday, September 22, 2023

The Wizard of Oz Is In the Public Domain. But Which One?

Well, this is not a difficult legal question, but it is an interesting question regarding the popular imagination of a cultural icon. Legally speaking, only L. Frank Baum’s 1900 children’s novel, The Wonderful Wizard of Oz, is in the public domain. As to the visual representations of the characters in the book, that’s another story.

“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.” [bold text added]

That’s language from this week’s Eight Circuit Court of Appeals’ decision. In that case, Warner Bros. Entertainment, Inc. vs. X One X Productions, AVELA, a nostalgia merchandising company, was using images of characters from popular films and cartoons, such as Gone With the Wind, The Wizard of Oz, and Tom & Jerry. The images were lifted from movie posters and lobby cards and put on shirts, lunch boxes, music box lids, playing cards and more. Warner Bros. claimed copyright infringement. AVELA won the right to use some characters, but not the Warner Bros. version of The Wizard of Oz characters.

What this basically means is that if you’re making your own version of The Wizard of Oz, that’s perfectly fine, so long as you don’t copy “consistent, widely identifiable traits’ in the [copyrightable] films that are sufficiently distinctive.” In other words, your version of the characters cannot look like the characters in Warner Bros.’ 1939 MGM movie, The Wizard of Oz.


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  • Wizard Oz Cowardly Lion…

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