Zazzle & Warner Bros. Pretend All References To Wizard Of Oz Are Covered By WB Copyright

from the there's-a-problem-here dept

Lowestofthekeys alerts us to the situation of one W. Thomas Adkins, who had some t-shirt designs of his own making for sale on Zazzle... until they were taken down in response to a copyright claim. After Adkins requested more info on why his images were taken down, Zazzle explained:
...your product was removed due to an infringement claim by Warner Bros. Studios. While the artwork as you claim is original, the characters from the Wizard of Oz are currently property of Warner Bros. As a guideline, designs from the Wizard of Oz that are currently prohibited for sale on Zazzle’s Marketplace are:
  • All inspired artwork and character renderings from the Wizard of Oz
  • Quotes from the Wizard of Oz Franchise
  • All tags and descriptions that reference the Wizard of Oz
- Zazzle
There are a few problems with this. First of all, characters from the Wizard of Oz are not, in fact, "property of Warner Bros." The original book, written by L. Frank Baum, was published in 1900 and is in the public domain. The popular movie version, in which Warner Bros. holds the copyright, came out in 1939. This does lead to some interesting copyright questions, and a few lawsuits. For example, last year, we wrote about a lawsuit involving t-shirts designed with public domain Wizard of Oz images. And then there's a brewing fight over whether or not Disney can make a film based on the public domain parts of the Baum books if it makes no reference to the 1939 movie.

Basically, what the law has said is that if you're making references to the specific characters or character traits that were portrayed in the movie, but which are not from the books, then its under WB's copyright. So, if you were to display pictures of the actual actors or specific expressions or outfits that are from the movie, but not the books, then there's an issue.

From Adkins' post, however, it appears these were the images on the t-shirts that were removed from Zazzle:

It is difficult to see how either of these come anywhere close to infringing on WB's copyright. The first one merely displays a witch's pointy hat. While it seems that the origin of the pointy, wide-brimmed witch's hat has been lost to history, the various reports online suggest it long pre-dates 1939 and the movie. In fact, it appears that images in the original books show the witch in a pointed, wide-brimmed hat. So the hat is not copyright to Warner Bros.

Then there's the flying monkey. Problem being... the flying monkeys were in Baum's books, and Adkins' drawing is quite different from the version in the movie.

The concept of water melting the witch? Also in Baum's books, and as Adkins details in his blog post, it way predates the Oz books anyway.

Basically, everything in Adkins' images appear to reference the original Baum books and not the movie. Assuming Warner Bros. did make a copyright claim, as Zazzle's email stated, then it is engaging in copyfraud here and asserting copyright against images it has no rights over.

That said, Adkins also exaggerates his own rights in his response to Zazzle, which he posted. After explaining to Zazzle why his works did not infringe on WB's copyright, he unfortunately goes on to say:
As such, I respectfully request that my material and corresponding artwork be returned to circulation for purchase immediately.

Failure to do so would be an infringement on my copyright of my created artwork which, as verified by the testimony above, does NOT infringe upon Warner Bros. Entertainment’s copyright on the 1939 film or the specific celluloid representations of the characters made in said film. If my copyright continues to be infringed upon I will seek legal action against both Zazzle and Warner Bros. Entertainment.
Uh... no. Zazzle choosing not to display your work is, in no way, copyright infringement. As a private company, Zazzle has every right to refuse to display any particular work, even if its reasons are dumb. The public (and people like Adkins) are free to mock them, but there is no copyright issue there, and especially not infringement by Zazzle. The service certainly does not have the greatest reputation because of its quick trigger finger in pulling down perfectly legal content, but that doesn't mean it's illegal. Claiming that not displaying someone's work is infringement is just ridiculous, and takes away from Adkins' otherwise strong arguments.

Either way, the original point stands: Adkins' works don't appear to be infringing WB's copyrights. If WB did make the claim, it appears that WB went way too far. Adkins should have just filed a standard counternotice to Zazzle, and one would hope Zazzle does the right thing and puts the works back up.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    That Anonymous Coward (profile), Jun 18th, 2012 @ 8:26am

    but but but copyright is everything!!!!!

    This should be taken as yet another sign that copyright has run amok and needs to be repaired.

    People no longer understand what it actually is, how it works, and its just a weapon to make threats to extract money.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Jun 18th, 2012 @ 8:27am

    literary nitpicking

    In the book, the witch had a golden cap that she used to control the monkeys. The only people mentioned in the book with peaked hats were the munchkins, the scarecrow, and the people in the city of Oz.

    Also, the monkeys were no longer in the service of the witch when she died (she used up the number of times she could call on them) before she was melted.

    http://www.gutenberg.org/ebooks/55

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Anonymous Coward, Jun 18th, 2012 @ 8:27am

    2-step Plan

    1) Kill all the lawyers, burn them and fire their ashes into the heart of the sun.

    2) Society is now free to advance.

     

    reply to this | link to this | view in thread ]

  4.  
    icon
    Leigh Beadon (profile), Jun 18th, 2012 @ 8:30am

    Re: literary nitpicking

    The witch does appear to have been illustrated with a pointy hat in the 1900 edition, though:

    http://en.wikipedia.org/wiki/Wicked_Witch_of_the_West

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Jun 18th, 2012 @ 8:38am

    Re: 2-step Plan

    Lawyers are, in fact, hired by people. Not roving bands of destroyers. Educate the public, get the money out of Congress (Sonny Bono act) and return copyright and patents to very limited terms that benefit the public domain.

    Kill all the construction workers next time your road gets torn up too.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, Jun 18th, 2012 @ 8:39am

    could it just be another instance of 'if i am not getting anything out of this, i'm gonna stop everyone else from doing so', or 'if i say something long enough, others will give up on it and it will eventually become mine, so i will win'. getting 'rights of way' work like this, so........

     

    reply to this | link to this | view in thread ]

  7.  
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    Brent (profile), Jun 18th, 2012 @ 8:49am

    So assuming it can be proved that WB committed copyfraud, would Atkins be able to sue them for lost profits due to his products not being for sale?

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Anonymous Coward, Jun 18th, 2012 @ 9:01am

    Re: Re: 2-step Plan

    If the construction workers were constantly tearing up perfectly 'good' roads so that they could lay 'their' toll roads that we were required to pay for the privilege of driving on... then yes

    If the construction workers are engaged in the destruction of public right of way's so that they can install corporate owned toll roads, and parking lots, and streets... then yes

    If the construction workers are really just a 'front' for the 'streetpavers, thugs, and hooligan's branch of the local **AA'... then yes

    If the construction workers were engaging in the same type of behavior that lawyers are, than there would be people advocating to 'kill the construction workers'.... however since most 'construction' by design involves 'building' things and not preventing other people from building things that they have the ability and knowledge to build... this isn't happening.

    Trying to compare the most destructive industry (any antagonistic profession is going to attract bad actors, one based on he who can spin the biggest ball of BS and get the judge to buy it, is going to attract the WORST actors) with an industry based on building things...

    Everyone is a Genius... but if you judge a fish on it's ability to climb a tree, it will live it's whole life believing that it is stupid. Albert Einstein

    I know there's a lawyer joke in that quote... but it's too early...

     

    reply to this | link to this | view in thread ]

  9.  
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    Greevar (profile), Jun 18th, 2012 @ 9:02am

    Re:

    Or destroy competition.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, Jun 18th, 2012 @ 9:03am

    I knew it was in there...

    Everyone is a Genius... but if you judge a fish on it's ability to climb a tree, it will live it's whole life believing that it is A LAWYER. Albert Einstein

     

    reply to this | link to this | view in thread ]

  11.  
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    ltlw0lf (profile), Jun 18th, 2012 @ 9:13am

    Re:

    but but but copyright is everything!!!!!

    Certainly in the minds of the copyright maximalists...they even throw the legal hammer at those copying from the public domain because they have done it first. They even fight each other for copying from the public domain. I wish they would all just sue each other into oblivion so they can disappear into history and everyone else can evolve without their stupidity.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, Jun 18th, 2012 @ 9:18am

    Re: Re:

    ....and those evil, evil alternate methods of distribution....
    and everyone who uses them.

     

    reply to this | link to this | view in thread ]

  13.  
    icon
    jupiterkansas (profile), Jun 18th, 2012 @ 9:23am

    Re:

    Absolutely, and spend the next 10 years in court for... probably less than $100.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Anonymous Coward, Jun 18th, 2012 @ 9:32am

    Oh, what a world! What a world!

     

    reply to this | link to this | view in thread ]

  15.  
    icon
    Mike42 (profile), Jun 18th, 2012 @ 9:51am

    Re: Re: 2-step Plan

    Lawyers are, in fact, hired by people.

    Not really. Lawyers are hired by businesses and corporations with agendas, and told to make something happen, such as software patents. This is why you see the outragous laberinth of logic in these lawsuits.
    If so many lawyers were'nt so light on morals and ethics, we wouldn't have these issues. Valets are supposed to police drunk drivers, but a lawyer just executes his clients wishes, and that's OK?

    I always thought the bar was supposed to police it's members, but it appears useless.

     

    reply to this | link to this | view in thread ]

  16.  
    icon
    Eponymous Coward (profile), Jun 18th, 2012 @ 10:29am

    The jailer's waiting

    With WB still aggressively defending a 70+ year old movie, and Disney (Mickey Mouse, the eternal copyright) thinking about doing their own version, it shouldn't be long before no one's allowed to even type the words Witch, Wizard, Scarecrow, Tin Man, etc, without a DMCA notice slapping them in the nethers.

    Screw public domain so long as a major studio can repackage and re-copyright. That's what I call progress!

     

    reply to this | link to this | view in thread ]

  17.  
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    Richard (profile), Jun 18th, 2012 @ 10:43am

    Uh... no. Zazzle choosing not to display your work is, in no way, copyright infringement. As a private company, Zazzle has every right to refuse to display any particular work, even if its reasons are dumb.

    Arguably, although Zazzle has no obligation to display the work, its statement that this is due to copyright infringement amounts to defamation, given that no infringement has occurred.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Steph, Jun 18th, 2012 @ 11:54am

    Adkins? Meet Etsy.
    Etsy? Adkins.

    Take your marbles and go somewhere else.

     

    reply to this | link to this | view in thread ]

  19.  
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    Lowestofthekeys (profile), Jun 18th, 2012 @ 12:17pm

    Re:

    Etsy and Redbubble...they have better quality shirts than zazzle too.

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Anonymous Coward, Jun 18th, 2012 @ 12:29pm

    Perhaps overreaching copyright-infringement allegations don't infringe Adkins' copyright, but surely there's a case to be made for interference with a lawful contract or some such?

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Digitari, Jun 18th, 2012 @ 4:10pm

    Re:

    Remember folks, ever visit to Zazzle is another lost sale for this person as long as his product is not displayed..............

    Fair IS fair, right????????

     

    reply to this | link to this | view in thread ]

  22.  
    icon
    Mike Masnick (profile), Jun 18th, 2012 @ 4:34pm

    Re:

    Arguably, although Zazzle has no obligation to display the work, its statement that this is due to copyright infringement amounts to defamation, given that no infringement has occurred.

    Eh, even that's a stretch. The bar for a defamation claim is reasonably high and I don't think this reaches it. We shouldn't rush to support a bad claim just because of who the actors are.

     

    reply to this | link to this | view in thread ]

  23.  
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    nasch (profile), Jun 18th, 2012 @ 6:42pm

    Re:

    Arguably, although Zazzle has no obligation to display the work, its statement that this is due to copyright infringement amounts to defamation, given that no infringement has occurred.

    Zazzle didn't state that there was any copyright infringement, WB did: "your product was removed due to an infringement claim by Warner Bros. Studios." And I doubt he'd get anywhere with a defamation suit against WB either.

     

    reply to this | link to this | view in thread ]

  24.  
    icon
    Greevar (profile), Jun 18th, 2012 @ 11:14pm

    Re: Re: Re:

    They are the competition.

     

    reply to this | link to this | view in thread ]

  25.  
    icon
    Chris in Utah (profile), Jun 19th, 2012 @ 3:56pm

    Funny...

    I'm just waiting for OZ merchandise out there to be brought to court so I can laugh at irony the effect. Wonder if they have the balls too... pun semi-intended.

     

    reply to this | link to this | view in thread ]

  26.  
    icon
    Sheogorath (profile), Sep 7th, 2012 @ 6:24pm

    This stifles creativity

    I was writing a Wizard of Oz fanfic based on the trip along the Road of Yellow Bricks, where Dorothy gets taken by the three characters she meets before getting taken by Toto outside the gates of the 'Emerald City', her Silver Slippers flashing in the sun even when she's taken doggy style, but I guess I'll have to put it on permanent hiatus so I don't get sued by Warner Brothers for an egregious use of five of their trademarked characters.

     

    reply to this | link to this | view in thread ]

  27.  
    icon
    Sheogorath (profile), Sep 7th, 2012 @ 6:27pm

    Re: This stifles creativity

    Egregious MISuse, d'oh!

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    Yikes, Mar 19th, 2014 @ 8:14pm

    How long before L. Frame Braun sues Warner Bros.

    The original book, written by L. Frank Baum, was published in 1900 and is in the public domain.

    Correction and/or clarification: The original book, written by L. Frank Baum, was published in 1900 and is not currently slated to enter or reenter the public domain in the United States until 12/31/2090 (Don't ask!). Both Warner Bros. and Walt Disney the artificial copyrighted trademarked megacorporation should go the way of enron (whose demise made ALL big companies look vulnerable, hence the lowercase E) for this!

     

    reply to this | link to this | view in thread ]

  29.  
    icon
    nasch (profile), Mar 19th, 2014 @ 9:45pm

    Re: How long before L. Frame Braun sues Warner Bros.

    Correction and/or clarification: The original book, written by L. Frank Baum, was published in 1900 and is not currently slated to enter or reenter the public domain in the United States until 12/31/2090 (Don't ask!).

    I'm asking - for a reference for your claim. This Wizard of Oz wiki disagrees with you for example, do you have any information to back up your claim that the book is still under copyright protection?

    http://oz.wikia.com/wiki/Copyright

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Sigh, Mar 20th, 2014 @ 6:11am

    Re: Re: How long before L. Frame Braun sues Warner Bros.

    Clarifying a clarification: The original book, written by L. Frank Baum, was published in 1900 and is not currently slated to enter or reenter the public domain in the United States until 12/31/2090 given a retroactive 190-year copyright term for bestsellers (instead of 95 years).

     

    reply to this | link to this | view in thread ]

  31.  
    icon
    nasch (profile), Mar 20th, 2014 @ 6:34am

    Re: Re: Re: How long before L. Frame Braun sues Warner Bros.

    given a retroactive 190-year copyright term for bestsellers (instead of 95 years).

    So... you're joking, right? Between no non-verbal cues and the prevalence of internet idiots, it's hard to tell.

     

    reply to this | link to this | view in thread ]

  32.  
    identicon
    Take 3 (sigh), Mar 21st, 2014 @ 11:36am

    Re: Re: Re: Re: How long before L. Frame Braun sues Warner Bros.

    During the 19th century, renewed bestsellers were subject to 28 years of copyright protection in the US, which is double the typical (at the time) 14 years of copyright protection. By this logic, given that the standard copyright term in the US is 95 years (applied retroactively to old works no matter how many of said works had previously escaped copyright), bestsellers would automatically be subject to a mere 190 years of copyright protection (also applied retroactively to old works).

     

    reply to this | link to this | view in thread ]

  33.  
    icon
    nasch (profile), Mar 21st, 2014 @ 12:39pm

    Re: Re: Re: Re: Re: How long before L. Frame Braun sues Warner Bros.

    given that the standard copyright term in the US is 95 years

    Isn't it the life of the author plus 70 years?

    (applied retroactively to old works no matter how many of said works had previously escaped copyright)

    Do you have more information on this? Are you talking about the Sonny Bono act or something else?

     

    reply to this | link to this | view in thread ]

  34.  
    identicon
    Sigh, Mar 21st, 2014 @ 6:08pm

    How long before L. Frame Braun sues Warner Bros.

    Sonny Bono Act (whether you view it as 95 years or life plus 70 years)

     

    reply to this | link to this | view in thread ]

  35.  
    icon
    nasch (profile), Mar 21st, 2014 @ 6:35pm

    Re: How long before L. Frame Braun sues Warner Bros.

    "The Act extended these terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier. Copyright protection for works published prior to January 1, 1978, was increased by 20 years to a total of 95 years from their publication date...

    Unlike copyright extension legislation in the European Union, the Sonny Bono Act did not revive copyrights that had already expired."

    So I have no idea where you're getting 190 years, or the idea that bestsellers get treated differently than anything else, and you're mistaken about works going back under copyright after entering the public domain. That act had no effect on the copyright status of the novel The Wizard of Oz.

     

    reply to this | link to this | view in thread ]


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