Copyright Law and the New Oz Movie: Not a Happy Situation for the Wicked Witch!

Oz the Great and Powerful (2013) has been described as a prequel to the 1939 classic film The Wizard of Oz.

Both films are based on L. Frank Baum’s Oz stories.

Lyman "L." Frank Baum died on May 6, 1919 - which (as any student of American copyright law will tell you) is 4 years before the magical year of 1923. Why is 1923 magical? Because works registered or first published in the U.S. before 1923 are safely in "the public domain" - which means they can be used and adapted without seeking permission from the original author.

So the makers of the new Oz film are free to use anything from the Oz canon... right?


Because the movie with Judy Garland playing Dorothy was registered in 1939, the original elements that MGM added to the L. Frank Baum stories are still protected by copyright. Under the current law, the original elements that were added to The Wizard of Oz by MGM in 1939 won't enter the public domain until 2034.

Because the rights to the 1939 MGM film were later acquired by Warner Brothers, the makers of the new movie - Disney - have been very careful not to tread on territory that Warner Brothers now owns (Disney doesn't have to be wary about the underlying pre-1923 stories, those are in the public domain, but the things that were added to the Oz canon when MGM adapted the books in 1939 - like production design and songs - are arguably protected).

As a March 4th, 2013 post to Art Info by Ben Flavin explains: "Disney’s lawyers have diligently searched the Oz the Great and Powerful to scrub any potential copyright infringement from the film. SPOILER ALERT: the Ruby Slippers won’t make an appearance – the original slippers were silver. Even the Munchkin hairstyles were given deference by Disney’s lawyers."

Most of us would agree that Disney probably should have some restrictions on how much they can take of someone else's creation.

But is the term of (i.e., length of protection under) copyright too long?

And are big companies abusing the privilege of copyright by taking public domain works and threatening others who might also want to reinterpret those same works?

Disney (who many consider to be the Wicked Witch in this story) has built a very profitable business on appropriating stories from the public domain and then preventing others from reinterpreting those same stories (e.g. "Zeke Wolf" and the three little pigs), for fear of treading too closely to Disney's orignal content.

Some thoughtful commentators think Disney has sometimes pushed too hard (e.g., lobbying Congress to extend copyright term and denying the producers of a 2013 opera about the life of Walt Disney permission to use "any of the images of the characters that made him a household name") and to define very broadly the original "property" that they control under copyright (e.g., Disney owns the rights to Winnie the Pooh - first published in 1926 and therefore still under copyright - and recently unsuccessfully sought to stop a children's book by an Irish author, based on her childhood growing up on a farm, that featured a pig named Piggley Pooh).

Perhaps our culture would be more dynamic if characters like Mickey Mouse and Mary Poppins and the Disney version of the wolf and three little pigs could be remixed without fear of a lawsuit from Disney?

Some reasonable critics (not just copyright extremists) might even want to say to Disney what Auntie Em said to Almira Gulch in the 1939 movie: "[J]ust because you own half the county doesn't mean that you have the power to run the rest of us. For twenty-three years, I've been dying to tell you what I thought of you! And now... well, being a Christian woman, I can't say it!"

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