

Wizard of Oz court ruling: putting parts of public domain back under copyright - grellas
http://www.techdirt.com/articles/20110707/13110415001/wizard-oz-court-ruling-suggests-moviemakers-can-reclaim-parts-public-domain-put-it-under-copyright.shtml

======
michael_dorfman
The headline is very misleading, in my reading.

The case here is _not_ one of taking thing from the public domain and putting
them under copyright (as happened, for example, when the copyright terms were
adjusted to match the rest of the non-US world), but rather, a dispute about
what is in the public domain and what is copyrighted.

The crux of this case is whether the attributes added to the film adaptation
of a work of literature (not present in the work of literature) have a
separate copyright term running from the release of the film (and not from the
original publication of the book.)

grellas, am I reading this right?

~~~
grellas
This case presents a bizarre confluence of elements that have caused courts
and commentators to go all over the board with it: you have a copyright on the
1909 book that has long since expired, you have a 1939 film that remains under
copyright, you have publicity stills from the 1939 film that depict characters
from the film and that are not under copyright, and you have an alleged
infringer who crops the images from the public domain publicity stills and
puts them on t-shirts along with tag lines from the copyrighted movie
("there's no place like home") and sells them for commercial gain.

The holding here states that the qualities of the characters as distinctively
depicted in the 1939 movie are in themselves protected by copyright even
though the original characters as depicted in the book are not.

You are correct that this, then, is the "crux of the case" and this is indeed
a dispute about what is or in not in the public domain rather than one about a
literal taking back of elements of the public domain. Nonetheless, the
practical effect of the ruling is to make it hazardous to use public domain
characters from older works of literature in new films if such characters have
previously been depicted in any film that remains under copyright (which
obviously limits what one can do with certain public domain materials on
penalty of being sued for infringement).

~~~
michael_dorfman
Thanks, as always, grellas.

But is this really a new doctrine? I mean, clearly the character of Cinderella
is in the public domain, but I assumed that the Disney representation was
copyrighted by Disney, and that if I wanted to make my own (commercial)
representation of Cinderella, I'd need to make sure mine doesn't resemble the
Disney version too closely.

------
zmanji
I think the saddest part of the article comes from the fact that future
adaptations of the Wizard of Oz have to ensure that they are not to similar to
the 1939 version, else they might be infringing.

How can this be promoting the progress of science and useful arts?

~~~
bhousel
> _the fact that future adaptations of the Wizard of Oz have to ensure that
> they are not to similar to the 1939 version..._

That's not a fact, that's just one blogger's misinterpretation of one lawyer's
opinion.

------
tjr
If the "character traits" are under copyright, and thus these shirts violate
copyright, then how are the posters that the shirts are based on public
domain? The posters contain the same character images, and even if they were
not registered with the copyright office directly, I don't see why the claim
on the shirts would not extend to the posters also?

------
bhousel
> _In case you didn't get that, if you were to create a movie Wizard of Oz
> entirely based on the book, if one of the actors does pretty much anything
> that suggests a similarity to the movie version, rather than the book
> version, it could be infringing. At the very least, this completely rules
> out any attempt to make a nod or homage towards the original film._

I don't think that is true at all, and I believe that this blogger is
misinterpreting the law here. If Sam Raimi were to digitally put Judy Garland
in his remake, that would be copyright infringement. But "nods and homages"
should be fine, as long as the movies (music, screenplay, acting) are
stylistically different. This is kind of guaranteed, since the original was
made _over 70 years ago_ and the new one is being directed in Sam Raimi and
will be in 3D..

