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
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
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.