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Court May Have Given Warner Bros. Control Over All of Oz

A ruling in a case about Warner Bros. and theThe Wizard Of Oz may have made it possible to copyright characters now in the public domain.

The Eighth Circuit Court of Appeals decision came Tuesday in a lawsuit between Warner and AVELA, which makes nostalgia merchandise. AVELA had created products about The Wizard of Oz, Gone with the Wind and Tom & Jerry using images taken from restored versions of movie posters and lobby cards. Warner, which owns the rights to the 1939 MGM Wizard starring Judy Garland, sued for copyright infringement.

The key issue was what protections are attached when works covered by copyright add new aspects to characters in the public domain? Avela won a key point in the ruling. The court decided the movie posters and lobby cards for all of these works were now in the public domain because they had been issued 70 years ago without either copyright notice or instructions to return or destroy them.

However, Warner may have won a much bigger issue. In its ruling, the court said:

A work developed from the public domain material infringes the copyrights in the later works to the extent that it incorporates aspects of the characters developed solely in those later works.
In English that means if you are working on one of the estimated nine Oz-related projects now in development in Hollywood you better make sure that none of the characters resemble any part of the characters in the MGM movie. This ruling should be known as the Intellectual Property Rights Lawyers Employment Act of 2011.

To give you an idea of the difficulties this presents, consider these character sketches from the upcoming movie Dorothy of Oz:

Remind you of anyone?

Clearly the designers weren't going to the levels of originality seen in adaptations like The Wiz.

(L-R: Ted Ross, Dianna Jackson, Michael Jackson, Nipsey Russell. Whatever happened to Nipsey Russell?)
The court wrote that the because the film actors' portrayals "rely upon elements of expression far beyond the dialogue and descriptions in the books," they had created essentially new characters. Now look at the original W. W. Denslow illustrations and explain to me how the characters created by Bert Lahr and company are not in the public domain.

Given the absurd lengths to which corporations with huge amounts of resources go to warp the copyright laws, the benefit of the doubt in public domain cases should be with the public.

Now, if I only had a brain.


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