The Insanity Of Making A 'Wizard Of Oz' Film In Today's IP Climate
from the goodbye,-yellow-brick-road dept
It’s always tough to root for the underdog when neither of the involved parties deserves that title. So, rather than pick one, we’ll just discuss the overweening ridiculousness of copyright law. It’s a subject that never goes out of style, thanks to our legislators’ willingness to continually extend copyright protection terms.
As was covered much earlier in the year, Disney is producing its own “Wizard of Oz” movie, titled “Oz the Great and Powerful.” While Frank L. Baum’s books are definitely in the public domain, filmed depictions of Baum’s characters are mainly the property of Warner Bros. WB attempted to head off this incursion into its domain by filing a trademark application on “The Great and Powerful Oz,” but it was a week too late and is now (presumably) several billion dollars short (H’Wood mathematics, yo).
Having failed to block Disney’s entry into the Oz arena, Warner has now busied itself with watching each development for any slip-up that could land it a tasty settlement — or an injunction. To that end, Disney has placed its own legal team on the set to ensure that none of the characters or elements in the Disney film bear too much resemblance to Warner’s property. The sheer amount of highly detailed micromanagement needed to avoid the rights holder’s litigious wrath borders on OCD-hellish insanity.
Striving for a visage different from the one Margaret Hamilton made famous, Howard Berger, an Oscar-winning makeup artist, “was finally able to come up with a shade of green which satisfied Disney’s legal team,” SlashFilm.com reported after a visit to the set. According to Disney’s production notes Mr. Berger named his custom color Theostein — a conflation of the witch’s name before she turns wicked, and Frankenstein.
When something as minimal as a move left or right on the Pantone chart could potentially trigger some legal action, you know you’ve reached some sort of watershed mark in IP protection. It’s highly doubtful our founding fathers had a “shade of green that satisfies a legal team” in mind when they set about trying to “promote the progress of science and the useful arts.”
Nor were they particularly concerned with innovative hairdos.
About 40 dwarfs were cast in “Oz the Great and Powerful” as Munchkins… They still have weird hair, but Disney lawyers nixed at least one style as too similar to one from the original movie. It was tweaked in postproduction using computers.
True, there are many things the founding fathers couldn’t possibly have considered over two hundred years ago, but what’s going on here is resembles nothing more than gerrymandering Baum’s legacy in order to avoid a costly turf war — over something that should be in the public domain.
It’s a rare day when you find yourself commiserating with one of the biggest IP thugs of all — Disney. Baum’s original work is now a minefield, and anyone hoping to utilize this public domain title now has to contend with a powerful legal team protecting a 74-year-old film. But, I suppose, if you’re going to choose someone to walk across an IP minefield, it might as well be Disney. It makes perfect karmic sense.
Filed Under: copyright, frank l. baum, lawyers, oz the great and powerful, public domain, wizard of oz
Companies: disney, warner bros.
Comments on “The Insanity Of Making A 'Wizard Of Oz' Film In Today's IP Climate”
I hope Warner still finds something..
And sues them for copyright infringement.
This is just PERFECT!
To everyone who thinks copyright works as it is…
Well…
This article is pretty much proof that it’s broken.
You don’t need any other examples, just this one.
Re: I hope Warner still finds something..
It’s highly doubtful our founding fathers had a “shade of green that satisfies a legal team” in mind when they set about trying to “promote the progress of science and the useful arts.”
You are both wrong. It’s all perfectly fit with [insert name of founding father that was a lawyer here]’s ideal of a better world for his profession colleagues. The lawyers earned a lot of money so clearly copyright works fine. Freetard.
Re: I hope Warner still finds something..
“To everyone who thinks copyright works as it is…”
You mean the lawyers getting paid to comb through all this on both sides? Hell they don’t even have to go to court. Plus if there is a hairdo they think should be changed, they have the power of “copyright” to tell the directors, producers, and hair stylists how to do the Munchkin’s hair!
Since when is copyright about letting lawyers have control over culture works?!
Re: I hope Warner still finds something..
Yes And Yes !
Let them Eat Each Other Up !
Unleash the Dogs of War.
The only winners in copyright law are lawyers.
Fact!
I didn’t know Wizard of OZ was intended as a retroactive parody on our current copyright system. After all, it takes a good dose of wizardry, hard skin, ferocity and evilness to walk down the borderline insane path of the yellow copyright bricks.
Again, if hampers duplicating crap, what's the down side?
Ya just cain’t see the good in nothin’, can ya?
Heck, I could argue that copyright tends to force innovation because duplicating old crap is too complex.
Re: Again, if hampers duplicating crap, what's the down side?
Where’s the good in copyright?
Re: Re: Again, if hampers duplicating crap, what's the down side?
Laywers could tell you plenty
Re: Again, if hampers duplicating crap, what's the down side?
I could argue that dropping a metric tonne of smallpox on a city promotes evolution: only those that develop immunity will survive. You end up with a population that is 100% smallpox immune (or 100% dead…either way, they are technically immune).
Of course now you realize that ours is a stupid argument. Sacrificing basic rights for the sake of a potential advantage for a small segment of the population is not something we should be aiming for.
Re: Again, if hampers duplicating crap, what's the down side?
“I could argue that copyright tends to force innovation”
You could argue that the Earth is the center of the Universe too…
Re: Again, if hampers duplicating crap, what's the down side?
Re: Re: Again, if hampers duplicating crap, what's the down side?
Because they have copyrigt on the characters etc.
Re: Re: Re:
and… that’s it?
because they own a copyrestrict they don’t need to innovate?
but everyone else must be forced to?
everything’s wrong with this picture
Re: Re: Re:
also, picking another shade of green is soo innovative
here let me see, open photoshop and pick a green that’s slightly more gray than the last green
oh buddy, that’s some serious innovation right there
hey, what happens when everyone’s already claimed a shade of green? and when everyone’s claimed a shade of every color in the spectrum?
let me guess: innovate by making/using colors the human eye can’t see
i’m getting a shade of Ultraviolet copyrestricted in advance, i better not be seeing anyone using it
Re: Again, if hampers duplicating crap, what's the down side?
That seems like an anti copyright angle you are taking there.
Disney has been duplicating Mickey Mouse for ages, if they didn’t have copyright protection they would have had to constantly make new characters to stay ahead of the curve as people re-imagine their old stuff they need to stay original, current and relevant.
Re: Again, if hampers duplicating crap, what's the down side?
You forgot your sig.
You’re welcome.
Re: Again, if hampers duplicating crap, what's the down side?
copyright tends to force innovation because duplicating old crap is too complex.
A key concept in innovation is doing something new, better, or more efficiently.
Having graphic artists redoing a dwarf’s hair is not efficient. They could be working on some awesome special effects shot or working on a better movie.
Having lawyers sit around a movie set to nix director decisions is not efficient. The lawyers could be more efficient by, oh, dying at the bottom of the ocean or something.
Re: Again, if hampers duplicating crap, what's the down side?
Yes, you could argue that point… But since all you post are randomly combined parts of incomprehesible vitriol or mind numbing trolling, nobody will pay much attention to your argument anyway.
‘Innovation’ that forces a new shade of green, now THAT’S what the world needs more of.
Re:
also, picking another shade of green is soo innovative
here let me see, open photoshop and pick a green that’s slightly more gray than the last green
oh buddy, that’s some serious innovation right there
hey, what happens when everyone’s already claimed a shade of green? and when everyone’s claimed a shade of every color in the spectrum?
let me guess: innovate by making/using colors the human eye can’t see
i’m getting a shade of Ultraviolet copyrestricted in advance, i better not be seeing anyone using it
Re: Again, if hampers duplicating crap, what's the down side?
One of the great classic series of literature, and one of the great Hollywood films that it inspired are now simply “old crap” to the man who vehemently defends the people who fight to continue making easy money from the latter without having to create new works.
The comedy value is getting better at last!
So many fitting parables...
What’s good for the goose is good for the gander.
You made your bed, now lay in it.
Live by the sword, die by the sword.
Re: So many fitting parables...
Give ’em enough rope…
All 1939 films should be in the public domain. This is a disgrace.
Re: Re:
Agreed. And how did these retroactive copyright term extensions on past works become law anyway? Doesn’t passing such a law violate Article 1, Section 9, Clause 3 of the US Constitution?
Re: Re: Re:
Apparently not.
Re: Re: Re:
Has it been challenged to the Supreme Court? (Who has that much money, anyway?)
Re: Re: Re: Yes. And the Supreme Court upheld the extensions.
http://en.wikipedia.org/wiki/Eldred_v._Ashcroft
Welcome to the United States of Steamboat Willie.
Heaven forbid
Heaven forbid that this movie look or remind anyone of the original and evoke warm memories that make them want to go out and by yet another copy of the original with new extra super duper color enhancement. We’d much rather spend money on lawyers trying to stop it than make money with a new release of our old movie.
Heck, if it was me, I’d be trying to get in on the deal and re-release the original and encourage setting up double features.
Re: Heaven forbid
But… PIRACY!
That would be not only sensible but EPIC and could generate tons of money out of a 74-yr-old movie. That’s why it’s not happening. Instead file sharers will be sued for downloading the old version to check out and remember it.
Re: Re: Heaven forbid
Sadly, you are probably right. They are more likely to spend money trying to break up large pre movie viewing parties at people’s homes that are watching the original on dvd before heading to the movies to see the new one than to do anything sensible.
“But..But…If they are not a member of your immediate family it is a public screening that we did not authorize. Arrest them officer, and their little dog too.”
Re: Heaven forbid
Fun fact: I bought my copy of the movie partly due to the inclusion of all the public domain silent movies that preceded it on the same discs. That’s right, Warner made money directly from the public domain, but now fight tooth and nail to stop anyone else benefiting in the same way from their production.
Oh, and I have no doubt they will do some form of updated release of the original, even if it’s not necessarily theatrical. They’re just greedy and want income from both sides.
Why *should* we commiserate with Disney?
They made their bed and crapped in it. Let ’em sleep there.
Re: Why *should* we commiserate with Disney?
So Ryan Pequin was actually writing about Disney, then.
http://threewordphrase.com/bed.htm
So that is why Films never make a profit they employ dozens of lawyers for each actor. It also explains why so many are not worth watching, allowing the lawyers to design the sets and costumes, and write the plot to avoid copyright infringement
Disney should have just let Mickey Mouse go into the public domain.
All the hassle and legal fees involved in getting around their own monster of greatly extended copyright terms can’t possibly be as much money as they earn from Mickey Mouse these days.
Re: Re:
I suggested something like that to my dad once. He replied that Disney was probably afraid that someone would do something bad with their characters if they let them slip into the public domain.
I didn’t have the heart to tell him about Rule 34.
was finally able to come up with a shade of green which satisfied Disney?s legal team
Look! The makeup industry is totally reliant on IP to make money! Some grocery stores sell makeup, so we can add them to the list…oh, wait, they are already on it.
I thought her name was Elphaba.
Re: Response to: Bob on Mar 6th, 2013 @ 10:58am
IIIRC the only witches for which there are canonical names are Glinda (good witch of the south), and Mombi (wicked witch of the north). You’re thinking something from a fairly recently written novel, fanfic basically.
And I think that Disney is playing with fire with having a green skinned, black dress and pointy hat wearing wicked witch of the west. That’s very different from the witch in the original books, and while much of that is roman a clef witch stuff, all together in the context of a movie about the land of Oz, it’s dangerous. I would not have advised them to go ahead with that.
Re: Re: Response to: Bob on Mar 6th, 2013 @ 10:58am
Whoops! I meant scenes a faire, not roman a clef. Sorry for the mistake, especially to any witches out there.
Re: Re:
The witch is never named in the Baum books; Elphaba is from the Gregory Maguire “Wicked” books/plays.
SPOILERS!
Please don’t spoil who becoomes the wicked witch. While some people who are following this movie already know – the general public don’t know which of the three “good” witches ends up going bad.
Remakes, remakes, remakes...
Hey, I have a wonderful idea…Quit remaking movies and actually come up with an original idea…If you create a movie that hasn’t been done yet, you won’t have to worry about stepping on anyone’s toes.
Because really…How many times does “The Wizard of Oz” need to be redone???
http://en.wikipedia.org/wiki/Adaptations_of_The_Wizard_of_Oz
Re: Remakes, remakes, remakes...
This is not a remake of Wizard of Oz.
Re: Remakes, remakes, remakes...
Because there is nothing new under the sun; someone will manage to have a reasonable argument that your “original” work managed to step on their toes.
i think the best thing for everyone to do is to use nothing, to invent nothing, to think of nothing and to do nothing. i wonder how quick someone would try to patent nothing, try to put a copyright on nothing, try to sell nothing, buy nothing or get paid for nothing? oops! i forgot! there are plenty of companies and people doing that already!! God Bless America!
An additional bit of irony
MPAA’s chief Chris Dodd is showing up for the special premiere in Michigan.
http://www.detroitnews.com/article/20130305/ENT02/303050378/1034/ent02/MPAA-chief-attend-Oz-screening-Royal-Oak
Re: An additional bit of irony
MPAA’s chief Chris Dodd is showing up for the special premiere in Michigan.
This film was shot mostly at a Pontiac, MI sound stage.
I would like see a full report on the impact to the local economy along with the overall profit/loss sheet for this movie a year from now.
I want to know if any of my tax dollars were given as incentives to shoot this movie in my state and whether they were worth it or not. I highly doubt it will be since none of the local businesses that I have contact with were even aware they were filming this movie.
Hollydud is bankrupt for new ideas.
This is one reason they are spending so much time remaking remakes.
Personally, I’m not going to a remake. I already know how it ends. Special effects and computer graphics do not tell or make the story.
It’s just another method to increase the costs so that the movie never breaks even, with all that creative accounting.
Re: Re:
This is not a remake. It’s a completely different story.
Wicked (the musical) walks the same tightrope
In the book, the slippers were silver – they were changed to ruby for the movie. So none of the non-MGM properties can use Ruby slippers. For the musical Wicked (owned by Universal Pictures), I noticed that they were in fact silver, but almost the entire time they were on stage, all the lights pointed at the stage were red, so most of the audience would have had no idea the slippers weren’t actually ruby. colored. Pretty clever way around that little copyright claim, if you ask me!
Wrong Baum Book
Disney should produce a movie adaptation of one of Frank L. Baum’s racist screeds against the Native Americans. It would fit better with Walt’s legacy.
“…but what’s going on here is resembles nothing more than gerrymandering Baum’s legacy in order to avoid a costly turf war — over something that should be in the public domain.”
The book itself is in the public domain, but visual elements particular to the 1939 movie are still under copyright, thanks to Disney!
You can see a 4-part comic book adaptation of the original novel issued in 1956 (when the book went into public domain) at this blog…
http://atocom.blogspot.com/2013/03/reading-room-wizard-of-oz-part-1.html
…and follow the links for the rest of the story.
You’ll see…
…how the movie combined several different characters (the Good Witches of the North and South and the Queen of the Mice) into Glinda the Good Witch!
…plot points, incidents (like attacks by wolves and bees sent by the Wicked Witch), and races like Quadlings and Winkies left out of the movie!
…different visuals for the characters (The Wicked Witch of the West is short, has only one eye, and needs a magic cap to control the flying monkeys)!
BTW, the adaptation concludes on Thursday.
like stated, Disney is nothing but an IP thug. like the rest of the entertainment industries, they want everything for free but want to give only if fees are paid to them. must have been where Apple got their business model from!
They give the body but keep the soul
Okay, I’ve taken (well, currently am in the process of taking) Business Law as a college course, and we already covered the wonderful wacky world that is the IP trifecta of copyright/trademarks/patents.
I get that, legally, Disney can make the perfectly reasonable argument that they’re basing it off the book (which is in the public domain), just like the one Warner Bros made back when dinosaurs walked the earth, so they’re in the clear on that.
But under what bizzaro, Twilight Zone, parallel dimensional logic does a company get to claim all rights to filmed depictions of characters from a book which has been freed into the wild blue public domain?
Wouldn’t it make more sense if a body of work enters the public domain, it should enter entirely. Not this “oh, you get the body, but we get to keep the soul for Infinity-1 years” silliness.
The only semi-plausible argument I could see being made here is that people could mix up Disney’s version of the characters with WB’s version of the characters from TWWOz, and that seems like a rather weak argument to make.
Could anyone who has a better insight on this legalese logic please explain it to me?
Re: They give the body but keep the soul
The 1930s adaptation was not particularly faithful to the book, but it was very memorable and this, combined with the fact that more people have seen that movie than read the original book, means that there is a strong desire by anyone who comes along later to copy the original changes made in the 1930s movie. For example, in the book, the Wicked Witch of the West is not green and doesn’t dress in a black dress with a black witch hat. Here is what she looks like: http://upload.wikimedia.org/wikipedia/commons/9/93/Wicked_Witch_of_the_West.png
But put her in a movie now and people will wonder why she doesn’t look like the green witch. But copying the green witch would infringe, since any original material in a derivative work (such as a different visual appearance for characters in a movie as opposed to the original book) is copyrightable.
Re: They give the body but keep the soul
“Could anyone who has a better insight on this legalese logic please explain it to me?”
Visual elements unique to the 1939 movie version including…
Ruby Slippers
Green Wicked Witch
Anthropomorphic Lion
Makeup designs for Scarecrow/TinMan/Munchkins, etc.
are copyrighted (and now trademarked, since they’re on a variety of licensed merchandise).
Using similar designs is a violation.
Doing designs based on the original OZ book illos is NOT a copyright or trademark violation!
It’s like the situation with Frankenstein, Dracula,and several other monsters.
The original stories are public domain.
However, the makeup/visuals created for the 1930s-40s Universal movies are so imbedded in our pop culture, that it’s hard (but hardly impossible) to do a Frankenstein or Dracula movie/tv show/comic without infringing on Universal’s copyrights or trademarks.
For example, look at Coppola’s “Bram Stoker’s Dracula” for a successful “re-do”.
This is perfect
They (Disney and WB) can both go to hell – I hope it costs both sides lots of money and is a complete flop. They will have gotten what they deserve.
It’s as farcical as DVD’s that always come with the legal warning that things said by the actors, etc. are not necessarily the views of the studio. The entertainment business would be far better of if all the lawyers were removed and they focused on creating the best entertainment.
Re: This is perfect
The lawyers are there because people are so eager to blame Hollywood for all the ills of the world and sue them for everything anyone gets offended about.
Imagine next time some-one makes a Wizard of Oz movie, they’ll have to deal with WB and Disney, and since it seems to be guilty to found innocent, mentioning the Wizard of Oz in the wrong forum could rain down a legal shit storm of epic proportions.
I am making the assumpion that neither will be public domain… ever, as this seems to be the way things are going.
So kind of them
I really appreciate all of the hard work the legal teams on both sides are doing.
I will be thinking of them warmly as I stream the pirated copies of both movies.
"IP"
Great article, except for the use of “IP” in place of copyright.
The phrase “intellectual property” and its acronym “IP”, while that latter may have the virtue of brevity in comparison to the phrase “copyrights and patents” (or “copyright and patent” as appropriate) cedes too much territory to the maximalists.
Government-granted monopolies are not property, no matter how many times the lie is repeated. At least those of us who revere the original purpose of copyrights and patents (both under the U.S. Constitution and in the original British instantiations of the modern notions, the Law of Queen Anne and the Statue on Monopolies of 1648) and abhor their corruption by rent-seeking publishers, movies studies, patent trolls and the like, can stop repeating the lie and stop using the phrase “intellectual property” or “IP” except when quoting others. And when we quote them, if at all convenient to the flow of our rhetoric, we should follow with a deconstruction of the notion of “IP” as a corruption of the purpose of copyrights and patents.
Just think about the hoops the next movie will have to jump through
Now that 2 OZ movies will be out, think how hard it will be for the next movie to be made. They will have to choose yet another color of green. Will we eventually run out of shades of green? Ok, maybe not, but we will run out of people willing to go through this trouble. Can you really say that stopping economic activity is the intent of copyright?
Re: Just think about the hoops the next movie will have to jump through
“They will have to choose yet another color of green.”
Why?
The witches, as shown in the original books, aren’t green!
How about this: if more than 50% of a work is derivative of another work, then the creator receives no copyright in the resulting work.
Just kidding.
Don't get high hopes they're still friends
Some people here feel like the Indians were feeling during the American Civil War: “finally those palefaces are killing eachother not us!”
But, altrough somewhat ironic, this is really not that big deal. The Wizard of Oz became an IP minefield, sure, but Disney has the money the hire an army of lawyers larger than the US Army, so if anyone can handle this, they can!
And these two giants won’t even sue eachother I’m sure about that! The WB probably does this nit-picking (as always) in hopes that they can force Disney to some kind of settlement. If they will see that their lawyers cost more than the settlement they hope for, they will stop, and if Disney will see that their lawyers cost more than the possible settlement they will settle.
This cannibalistic behavior of a big studio is new and somewhat ironic, but don’t get high hopes, they will become best friends again when it comes to lobbying for even stricter IP laws. They will still remain IP maximalists.
It’s not a big deal to them if sometimes they stumble into the very IP minefield they themselves laid: they own it’s map so they can navigate trough it safely!
WB shouldn't have ANY say
The craziest part of this story for me is…Warner Bros is doing all this stuff to “protect” their copyright on Wizard of Oz, and THEY DIDN’T EVEN MAKE THE MOVIE. WB had literally nothing to do with the creation of the content, but now they’re doing everything they can to control it.
Quick History: MGM made the film, then sold the rights to Turner Entertainment in 1986, who then merged with Time Warner in 1996.
So a movie of Wicked is even harder to make now...
Warner and Disney already know a film of Wicked would be wildly successful & redefine the story for a new century but now they can gang up together to use copyrighted elements from both films and make it prohibitive for Universal to produce one. That’s the reason they call it show-business not show-art – we all seem to forget that.