Disney And Warner Bros. Prepare To Fight Over Who Owns The Public Domain Wizard Of Oz

from the sorta dept

You may recall a lawsuit we wrote about last year, involving some questions about which parts of The Wizard of Oz movie were public domain, and which were still under copyright. It’s a bit confusing. The books are public domain, having first started being released in 1899. No doubt about that. But the movie, made in 1939, is still under copyright. And here’s the tricky part: which parts do the copyright cover? Technically, things directly from the book should be public domain — but any creative additions put into the movie (such as the ruby red slippers…) can be covered by copyright, and held by Warner Bros.

So, here’s the problem. Disney (not WB) has decided that it’s going to make a movie out of The Wizard of Oz — which it has titled Oz, the Great and Powerful. And it appears that WB wants to do everything possible to make life hellish for Disney if it moves forward on this plan. The first step? According to Eriq Gardner over at THResq, it was to quietly apply for a trademark on “The Great and Powerful Oz.” Note the similarity to what Disney has called its movie. Except, it turns out Disney was sitting pretty… having filed for a trademark on its version of the phrase/title… a week earlier. Thus, Disney has the lead here and WB’s application got tossed.

The THResq piece questions if WB was planning to make wider use of trademark to try to prevent things like this from happening, avoiding the fact that the copyrights on the works have long gone into the public domain.

In the past year, Warners has been one of the most aggressive filers of oppositions at the USPTO’s Trademark Trial & Appeal Board. Especially over The Wizard of Oz.

For instance, the company has gone after potential merchandise associated with Dorothy of Oz, a $60 million-budgeted animation film scheduled to be released later this year by Summertime Entertainment.

Warners also has attacked registrations on a series of neuroscience books entitled “If I Only Had A Brain,” a restaurant called “Wicked ‘Wiches Wickedly Delicious Sandwiches,” a clothing line known as “Wizard of Azz,” Halloween costumes under the brand name “Wicked of Oz,” and dozens of other Oz-related marks.

It goes on to talk about one ongoing case in particular, concerning a company selling wines in Kansas that it’s named after aspects of the Wizard of Oz. The company is claiming (correctly) that the book is in the public domain. But WB is claiming it doesn’t matter, because public domain only applies to copyright.

While that case continues, you can bet that WB won’t let Disney just go ahead and make this movie without putting up a bigger fight.

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Companies: disney, warner bros.

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Comments on “Disney And Warner Bros. Prepare To Fight Over Who Owns The Public Domain Wizard Of Oz”

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79 Comments
Anonymous Coward says:

1939?

Did you know they could just translate it into another language and then copyright it again, legally? I had a professors in college who was also a patent lawyer and he pointed out that English versions of Plato and Aristotle are under copyright because they re-translate them every time the copyright expires. A complete and total joke but the joke is on us.

Raphael (profile) says:

The respect these companies have for human creative potential is summed up by the fact that they’re going hammer and tongs over a movie that was made ~73 years ago. It’s like watching the only two people in Nebraska fight over a single acre of farmland because someone planted seeds there years ago and there might be a few volunteer plants come spring.

Anonymous Coward says:

Re:

Please report to court at 9am. You(Marcus Carab) are being sued for improper usage of a trade mark that We/Us(Warner Brother and it affiliates) own. Note, trying for Fair Use will be denied as we have already payed off oops We mean talked to a judge and it has been decided you are guilty. Please bring 18.7 Billion for damages You have caused Us.

Adam V says:

1939?

IIRC, any given translation is copyrightable. However, nothing stops you from creating your own work (by paying someone to do a translation for you) and putting yours in the public domain.

That’s the idea behind Kickstarter campaigns to hire a musical group to perform public domain symphonies, and putting the resulting recordings in the public domain.

(Found a link: here)

Torg (profile) says:

I could wile away the hours
Conferrin’ with my lawyers
Consultin’ with Iran
And my cash I’d be countin’
Gold bars piled like a mountain
If you couldn’t make movies

I’d copyright every ditty
However short or shitty
No data should be free

With the thoughts they’d be buyin’
They could really just stop tryin’
If we couldn’t make movies

Oh I, would tell you why
Our artists are our whores
I could sell you things you’ve bought ten times before
So go lawyers and buy some more

I would make you just a nuffin’
Your wallet full of stuffin’
Your art belongs to me
I would dance and be merry
Life would be a ding-a-derry
If you couldn’t make movies

Tick-Tock says:

Because Disney has done nothing with The Wizard of Oz, oh wait they have!

http://en.m.wikipedia.org/wiki/Return_to_Oz

And it’s arguably better (and darker) then the original, IMO of course. If WB knows that Disney could actually outbeat them, that would give them an excuse to pull a stunt like this. Either that or they are just being total assholes.

And speaking of seeing how the ORIGINAL books are now in public domain and hypothetically speaking I wanted to make an adaption from the novels, would I risk being sued by Warner Brothers?

Anonymous Coward says:

Re:

Considering Disney is doing a zillion-dollar movie of Edgar Rice Burroughs’ novel “Princess of Mars” (which is PD) entitled “John Carter”, and a direct to video version of the same PD novel came out last year from Asylum Pictures called, surprise, “Princess of Mars”, I don’t think Disney would have any say in the matter of your doing your own version as long as you use the book’s title.

btr1701 (profile) says:

Oz

So by claiming that it doesn’t matter if the book is in the public domain because they’re claiming trademark, not copyright, does that mean these companies believe they can remove any work from the public domain and own it merely by making a movie out of it and trademarking the distinctive aspects of the story?

For example, if they made a movie out of ‘Romeo & Juliet’ would these asshats actually have the stones to claim exclusive ownership of a Shakespearean play merely because they trademarked the title and key plot elements of the film?

btr1701 (profile) says:

Re:

> I wonder how many 10 year olds are being given
> credit on movies just because they’ll live
> longer and keep the copyright alive longer.

I’ve been wondering how the whole “x years + life of the author” thing works when the author is a corporation.

There are companies in existence today that predate the American Revolution. Do we really have to wait until Disney goes bankrupt (if ever) before its copyrights will run out?

When a law is passed which defines a time period as dependent upon the length of a life, it seems the underlying assumption has to be that the target of the law will actually die at some point. That’s kind of obviated with an essentially immortal entity like a corporation which nevertheless (and often paradoxically) enjoys personhood status under the law.

If “the life of the author” is literally defined as “until Disney goes out of business”, then for all practical purposes, we’ve already reached the point where copyright is perpetual and never-ending.

Chosen Reject (profile) says:

Re:

In the US, copyrights on works made after January 1, 1978 expire 70 years + the life of the author. Works made by multiple authors last 70 years + the life of the last surviving author. Anonymous works, Pseudonymous works, and works made for hire have a copyright duration of either 95 years from first publication or 120 years from creation, whichever expires first.

Steamboat Willie was published in 1928, which means that Disney only has 11 years to get Congress to extend copyright terms yet again. Though, if a Disney researcher and two law students are to be believed, the copyright on Steamboat Willie expired a long time ago due to technicalities.

Violated (profile) says:

Theory

Warners also has attacked registrations on a series of neuroscience books entitled “If I Only Had A Brain,”

I would call that feeble being a very different subject. I mean how can Warners have any gain or loss if these books used this name or some other?

a restaurant called “Wicked ‘Wiches Wickedly Delicious Sandwiches,”

I am very doubtful that Warners own the “wicked witch” term.

Witch in its self is a rank in the Pagan/Wicca religion which is older than Christianity. Then due to the Bible’s attack on Pagans these “witches” were soon seen as evil and wicked.

So that is the theme under which the books were wrote that pre-date the movie. No hope there in other words unless they infringed the character.

a clothing line known as “Wizard of Azz,”

Now they are getting silly.

Halloween costumes under the brand name “Wicked of Oz,”

Seeing that we do refer to Australia as “Oz” short for Aussie then I doubt they can make that one stick. Then we also use Oz as ounces as in weight.

and dozens of other Oz-related marks.

As I am very sure these books used the word “Oz” then even that direct mention is now public domain.

But WB is claiming it doesn’t matter, because public domain only applies to copyright.

I have seen such a claim once before. This is when someone is about to lose their case and makes an idiotic claim of pure arrogance.

My previous example was when UMG claimed that they did not have to consider “fair use” when taking down a video. The Judge not only pointed out they did indeed have to consider “fair use” but also they were wrong to remove the video.

Oh and thanks for insulting everything that is not under copyright.

TtfnJohn (profile) says:

What’s so amusing here is that two of the “giants” of IP maximalism are about to drag themselves through the courts, spending millions as they do that ought to go to their highly successful lobbyists in DC.

Let’s see now. SOPA was “for the artists”. “for the creators”, “for the lunch wagon sandwich makers” and so on. Not the studios. Nooooooooooo. And now here they are bringing out the neutron bombs to use on each other.

This’ll be fun to watch.

GreyGeek (profile) says:

Return of the Robber Barons

Arguing over public domain? Why of course! They’ve already bribed (“campaign contributions”) and the courts (tripsforjudges.org) to allow them to copyright works that have been in the public domain for years. In the case of the Wizard of Oz, over a century! On January 18th of this year the Supreme Court gave them the go-ahead to plunder the commons like the ordinary pirates and thieves they are:

http://www.ipwatchdog.com/2012/01/19/supreme-court-oks-public-domain-works-being-copyrighted/id=21867/

Yesterday the United States Supreme Court issued a truly regrettable decision in the much anticipated copyright case Golan v. Holder. At issue in this case was nothing short of whether the United States Congress has the authority to restore copyrights in works that were in the public domain, or in other words whether Congress has the authority to strip works from the public domain and grant copyright protection. In one of the more intellectual dishonest decisions I have ever read, the U.S. Supreme Court, per Justice Ginsburg, determined that Congress can pretty much do whatever it is that they want with respect to copyrights. Removing works from the public domain and restoring copyright protection is said to be a power granted to the Congress under the Constitution, and there are no legitimate First Amendment concerns.

To all those who can read the Constitution it has to be clear that the Supreme Court?s decision in Golan v. Holder is absurd. It is a ridiculous decision that lacks intellectual honesty and defies common sense. …

Corporations don’t care if the SCOTUS is being absurd, as long as they can make an easy buck by claiming to be the creators of someone else’s work.

Just another of the many instances of the corruption that has taken hold on this country at ALL levels.

Totomike says:

WHAT THE........!!

First off, The Disney film is a before The Wizard of oz takes place, and anyone can make a film about that. And As long as they have Silver Shoes and no singing or dancing Worner can shove it. Oh, and they shouldn’t talk when they let Sir Andrew Loyd Webber destroy their property when they allowed him to make a new musical of it, which he didnt just cut two great songs from the show, and threw in songs that didn’t make sense he put in reprise after reprise of the same old songs but his own lyrics. And Dorothy of oz is written and produced by the writers grandson, he can do what ever he wants with the story. And so far i have not heard a word about Ruby Slippers. You can trade mark your movies look, and the actors faceses, but you cant own what some one else has written and Disney owns the film writes to the other 14 Oz books, they can take and do what ever they want from them, and even the original Wonderful Wizard of oz book is public domain, Worner brothers needs to stop trying to take over everything and start making better films like the wizard of oz, and Harry Potter. Restarants and winery’s have the right to creat and make what ever product based on the books that they want to. And may I say they are acting like Mean Old Crabby Miss Gulch. First get ride of Webbers wizard of oz, It was a bad idea, and after seeing it and hearing the music they have killed the story, and the songs from the film. Don’t go after company’s who are not doing any remakes of your film, And people who have the write to creat stuff based on what the author has written and created, plus if it wasn’t for those oz books the film would have never been made.

Anonymous Coward says:

Re:

Actually, he was sort of a racist dick and argued publicly for the extermination of Native Americans. Best to leave him out of it. Disney already has trouble keeping themselves from being publicly called Mouschwitz.

On a side note, I’d like to see the creators of Zardoz get in on this fight, if only to see pictures of Sean Connery in a red leotard splattered all over the news.

Chargone (profile) says:

Falcon Punch (Kan-ChYo!)

i really do wish it were possible to apply the old Shinsengumi … philosophy? moto? whatever. applying it to all these *IAAs and their equivalents in other countries, large corporations of all stripes, and most governments, would improve things greatly.

i mean, it’d be a bloody mess, but it’d make more sense and being stupid would get you dead rather than rich.

Aku Soku Zan.

Niall (profile) says:

1939?

That would only work for any given translation. So older translations would be coming out of copyright – use one of them! After all, they can’t all be by the same company, and therefore they will have to be a bit different or they would have infringed already.

If ‘translation’ of a work allowed full re-copyrighting, the companies would simply translate a work into another language, ‘translate’ it back, and extend copyright (even more) indefinitely…

Don Austen (user link) says:

Copywrong

I find it curious that the studios have made billions off of other people’s works without any regard to the creator’s families, but haggle over insignificant words. Peter Pan (J. M. Barrie), The Wizard of Oz (L. Frank Baum), The Little Mermaid (Hans Christian Anderson), the Lion King (Kimba, the White Lion), etc. But this has gone on in comic books for decades. Fawcett came out with Captain Marvel after Superman (there is now a lawsuit), Marvel came out with Mr. Fantastic after Plastic Man, which was created by Quality Comics, later acquired by D.C. Even Mad’s Alfred E. Newman’s image was stolen from a late 19th Century ad. After the X-Men came movie about advanced human mutations with super powers out, NBC fired back with Heroes. After Star Wars, there was Battlestar Galactica. It’s all a cutthroat business. But, not to be judgmental, may the best loser win.

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