As we noted last summer, the fact that L Frank Baum’s classic children’s fantasy novel The Wizard Of Oz has slid into the public domain has lead to a number of studios to develop various cinematic takes on the material. But a court case coming before the Eight Circuit Court of Appeals could have some impact on how those films get made.
As the owners of a majority of studio MGM’s classic film library are the rights holder to the classic 1939 musical adaptation of The Wizard Of Oz, Warner Brothers has filed suit against a t-shirt and novelty manufacturer for unauthorized use of images and dialogue from the film. The defendant in the case, X One X Prods, used publicity material released for the film prior to the finished motion picture being copyrighted as the source for their merchandise and maintained that since the characters and books are in the public domain there is no copyright violation.
Previously, an earlier court ruled that X One X Prods could reproduce the original publicity material in full without a copyright violation but could not alter that material for t-shirts and other such merchandise as that would infringe on Warner’s copyright.
What seems to be the crux of the argument is the uniqueness in how the characters are depicted. Nearly everyone is familiar with the image of Judy Garland as Dorothy, Ray Bolger as the Scarecrow, etc. While the characters themselves may now be public domain, it seems as if the court ruled that the distinctive properties that the actors and crew members of the film brought to their depiction that is being considered the copyright of Warners.
It seems to be a point that has been considered by those working on some of the in-development Oz projects. Two of those proposed films are animated ones featuring Dorothy – One a new musical adventure and the other a more straight forward, non-musical adaptation. In released development art for both films, the design for Dorothy has moved away from the famous blue and white check dress associated with Garland’s portrayal towards a more tomboy-ish look with jeans overalls and a shirt. Similarly, if any production is going to use the famous magical slippers that Dorothy acquired on her adventures, they will need to make sure that they are silver slippers, the way they were in Baum’s book. MGM famously changed the slippers from silver to ruby ones as it was decided that red would look better on the big screen.
One thing that the lower court left ambiguous, though, was how copyrightable was certain character traits from the 1939 film may be. It did rule that Warner brothers held copyright on the characters as they appeared in the film with their decision reading –
Each character has widely identifiable traits and is especially distinctive. Each has been extensively developed through the films. Be it Dorothy’s inherent wisdom coupled with her Midwestern farm girl innocence, … or the apparent inconsistencies of Scarecrow, (without a brain vs. wisdom and leader), Tin Man (without a heart vs. compassion and tenderness) and Cowardly Lion, (without courage vs. bravery and chivalrousness), they are especially distinctive.
What that decision doesn’t mention is that those traits aren’t unique to the screenplay for the film but are derived from Baum’s original public domain novel and creates a potential problem for Warners in the future. They may decide that this decision gives them the right to sue another studio for producing a project that appears to be too similar to the 1939 film even though that project may have been trying to be careful to keep strictly to the original, public domain source material.
Would Warner Brothers embark on such a law suit? To a layman like myself, it sounds like it would be a fool’s errand and one destined only for failure and bad press. However, the studio has been rather aggressive lately in its copyright litigation, even when it leaves the image of a big corporation filing a multi-million dollar lawsuit against a financially-struggling Long Island housewife, so who can say what the studio might do.