Wizard Of Oz Court Ruling Suggests Moviemakers Can Reclaim Parts Of The Public Domain And Put It Under Copyright
from the we're-not-in-kansas-any-more,-toto dept
Another day, another story of the law letting the public domain be locked up. Back in February, we wrote about an important case about the public domain involving The Wizard of Oz and some other films. Prior to 1976, of course, you had to register works to have them covered by copyright. A company named AVELA recognized that some publicity posters for The Wizard of Oz, Gone with the Wind and some Tom and Jerry cartoons were not registered (or in some cases, were registered, but not renewed), and thus were officially in the public domain. It then made t-shirts out of some of the images in the poster.
On appeal, the Eighth Circuit court seems to have more or less supported the original ruling, though with different reasoning. The court does say that the publicity materials are in the public domain. But then says that the new works (the designs on the t-shirt) results in a derivative work that “comes into conflict with a valid copyright.” Conceptually that makes sense. You can’t take a public domain work and then assume that gives you free reign to bring in other copyrighted work. But it’s troubling to see how the court then concludes that such derivative works occur in this case. It basically says that because the actors in the movie imbued the characters with specific traits beyond what was in the original works, even the use of still images that are public domain can infringe on the copyrights of the depictions of those characters.
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….
AVELA correctly points out that the scope of copyright protection for the characters in the films The Wizard of Oz and Gone with the Wind is limited to the increments of character expression in the films that go beyond the character expression in the books on which they were based. See Silverman, 870 F.2d at 49 (?[C]opyrights in derivative works secure protection only for the incremental additions of originality contributed by the authors of the derivative works.?). While true, this has little practical effect in the instant case, as a book?s description of a character generally anticipates very little of the expression of the character in film….
The film actors? portrayals of the characters at issue here appear to rely upon elements of expression far beyond the dialogue and descriptions in the books. AVELA has identified no instance in which the distinctive mannerisms, facial expressions, voice, or speech patterns of a film character are anticipated in the corresponding book by a literary description that evokes, to any significant extent, what the actor portrayed. 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.
As THREsq notes, it’s this section above that may be sending Hollywood lawyers into a bit of a tizzy as it appears to potentially extend the encroachment on the public domain, by suggesting that any general “character” traits that are added by a film adaptation, even of a public domain work, can be copyrighted. Considering there are a bunch of adaptations being made of The Wizard of Oz based on the public domain books, some lawyers are worried that this ruling gives Warner Bros. leverage over those other movies:
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 case you didn’t get that, if you were to create a movie Wizard of Oz entirely based on the book, if one of the actors does pretty much anything that suggests a similarity to the movie version, rather than the book version, it could be infringing. At the very least, this completely rules out any attempt to make a nod or homage towards the original film. But, more importantly, if just in the nature of being an actor, one of the actors imbues one of these characters with similar traits to the 1939 movie… that can be infringing.
And that’s insane. That goes way beyond the intent of copyright law, and again seems to destroy the laughable notion that there’s a real split between protection of ideas and expression.