The Hollywood Reporter ran a weird ‘scare’ story about the resolution of a copyright case featuring Warner Bros and people who were selling tchotchkes based on Wizard of Oz; I would have ignored it but I’ve seen other sites picking up the story and not doing a lot of analysis.
The situation is this: Warner Bros sued AVELA, who took images from Wizard of Oz and Gone With The Wind and other old movies and put them on lunchboxes and shit. AVELA had an interesting argument, which is that their stuff was taken from old promo imagery which was never copyrighted, and the judge let that fly, but only in cases of faithful reproductions of the original, uncopyrighted promo material.
As for making new use of the imagery, here’s what The Hollywood Reporter quotes as being important for upcoming Oz movies, like Sam Raimi’s Oz The Great and Powerful:
“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….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.”
Okay. And? Here’s a quote they get from a lawyer:
“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.”
What? The Hollywood Reporter article (and subsequent reporting based on it) seems to not understand that the various current Wizard of Oz projects are based on L Frank Baum’s original, public domain works and NOT Warner Bros’ movie. Everything that these quotes are sayingis pretty much standard.
Let’s put it this way: You can make a Frankenstein movie whenever you want, since the original novel is in the public domain. But you may not make a Frankenstein movie using the monster design that Jack Pierce created for Universal - that’s owned by Universal. To apply it to Wizard of Oz, you couldn’t make a new Oz film where Dorothy has ruby slippers, since they’re silver in the book and ruby was introduced in the film version. Or you couldn’t make your version of The Scarecrow look exactly like Ray Bolger in the original movie.
But here’s the thing: YOU WOULDN’T WANT TO. This ruling has zero impact on any Oz project because all of them will be blazing their own (copyrightable) designs. Now maybe I’m wrong - I’m no lawyer, I’m just an unfrozen caveman writer - but this all feels a lot like common sense to me. And it feels like craven hit whoring on the part of The Hollywood Reporter.