Public domain – two words that studios love to hear. It is thought that almost every literary work over a century old falls under that rule, therefore any studio can adapt the works of Jane Austen, Mark Twain or Robert Louis Stevenson without a care.
L. Frank Baum wrote “The Wonderful Wizard of Oz” back in 1900 and so many assume his creations from the Emerald City to Dorothy to the Cowardly Lion are safely in the public domain (the ‘ruby slippers’ were an MGM creation though and the copyright still belongs to them). Now, a ruling by the Eighth Circuit Court of Appeals this week in regards to a copyright infringement over Oz-related nostalgia merchandise between Warner Bros. Pictures and AVELA has added a new wrinkle to the debate.
THR, Esq. says that the ruling, in essence, means that “the features of film characters can be copyrighted even if these characters were based on prior work”. The actual wording in the statement says “the scope of the film copyrights covers all visual depictions of the film characters at issue.”
Aaron Moss, Greenberg Glusker litigation chairman, explains it thus: “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. 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.”
This has now put some big question marks over the fate of the nine or so ‘Oz’-related projects in development, certainly it means all of them will have to proceed with extreme caution so as to avoid deliberate comparisons to the 1939 MGM movie. The Sam Raimi-directed prequel “Oz The Great and Powerful” at Disney is the most likely to be feeling the heat after this ruling.