Oz the Great and Copyrightable
Disney’s newest fantasy-adventure, Oz the Great and Powerful, was a box office hit last weekend. Filmgoers managed to overlook the absence of certain well-known elements of the Wizard of Oz, most notably Dorothy Gale and her ruby slippers. Was this just because the new Oz movie is a prequel to the beloved classic? Or does the answer require a journey into the Haunted Forest of intellectual property law?
The rights to the 1939 Wizard of Oz movie are owned by Warner Brothers. The new Oz movie was produced by Disney. As a result, Disney wasn’t able to use all of the classic elements from the movie. Explaining all of the IP issues related to the Oz story would require a book-length treatise, so I’ll cover a few of the highlights.
L. Frank Baum’s first Oz book, The Wonderful Wizard of Oz, was published in 1900. Baum went on to write 13 sequels, concluding with Glinda of Oz in 1920. The Oz stories have been adapted into several movies, most notably in MGM’s 1939 musical classic (Warner Brothers subsequently purchased the rights to that movie, along with many others in the MGM library).
All of the Baum books are in the public domain, so they are not subject to copyright protection. This means that Disney, you, me, or anyone else is free to produce their own Oz movie (or book, comic, play, painting, ballet, you name it).
However, the 1939 movie is not in the public domain. Congress, in its infinite wisdom, has extended copyright protection for most works published in 1923 or after so that they fall under copyright protection until at least 2019. Most recently, this occurred due to the passage of the 1998 Sonny Bono Copyright Term Extension Act. Will they pass another extension in a few years? The suspense is killing me (Spoiler Alert: They Most Certainly Will).
Several of the most distinctive elements in the Oz canon were, in fact, created for the 1939 movie and don’t appear in Baum’s original books. These include Dorothy’s ruby slippers (they were silver in the book), the images and costumes of many of the main characters, such as the Tin Man, the Scarecrow, and the Cowardly Lion, and the film’s classic songs. Over the years, Warner Brothers has not been shy about aggressively protecting the copyright and trademark rights associated with these elements (see this 2012 article by noted entertainment law blogger Eriq Gardner for more details).
So my hypothetical Oz-based blockbuster could include Dorothy, but she couldn’t look or dress like Judy Garland’s character, and she would have to stroll the Yellow Brick Road without her ruby slippers. By making the new Oz film a prequel and excluding Dorothy altogether, Disney was able to avoid confronting some of these issues. Of course, there is always some grey area – or green, in this case – the New York Times reported that the filmmakers had to find a shade of green for the Wicked Witch of the West that was not quite identical to the shade of Margaret Hamilton’s 1939 makeup. Exactly how Disney’s legal team evaluated the IP issues related to specific shades of green, I have no idea.
Many works of classic literature have been adapted over and over in the movies and on TV, such that there is no one “classic” look to the characters. Take Sherlock Holmes, for example – right now, there are two TV shows featuring the character, along with a recent pair of movies starring Robert Downey, Jr. (who was supposed to star in Oz the Great and Powerful, but I digress). Audiences seem to be willing to accept Sherlock in a variety of forms and settings. Disney took a $200 million gamble that the same was true with the Oz series. So far, it seems to have paid off.
However, they do seem to be hedging that bet somewhat – while Disney is already planning a sequel to Oz the Great and Powerful, producer Joe Roth has stated that it won’t involve Dorothy. Doubtless they will claim that’s due to story reasons, but I suspect it’s because the audience so associates Dorothy with Judy Garland in her gingham dress that they would be resistant to seeing a new actress in a different wardrobe.
Meanwhile, Warner Brothers appears to be moving forward with their own Oz movie – one that could, presumably, include recognizable versions of Dorothy (ruby slippers and all), the Tin Man, the Scarecrow, and the Cowardly Lion. Until they find a songwriter as good as Harold Arlen, however, I doubt they will ever exceed the impact of the 1939 version.