Appeals Court To Determine If Wizard Of Oz Images Can Be Retroactively Plucked Out Of The Public Domain

Patently-O has an interesting discussion about an appeal being heard in the 8th Circuit, involving a question of the boundaries of copyright and the public domain in some images from public domain movie posters for The Wizard of Oz, Gone With The Wind and various Tom and Jerry cartoon films. Of course, back when these came out, in and around 1939, you had to specifically register works to have them covered by copyright. Not surprisingly, the works themselves were registered. However, some of the publicity posters that were used to promote them were released prior to the films being copyrighted (and were not copyrighted themselves) and, thus, are considered public domain.

An operation called AVELA used those public domain posters to make some t-shirts that included characters from these films (or rather, it appears to have licensed the images to others to make shirts). It notes that, as a company that specializes in creating works from the public domain, it was careful to only use images from public domain works. It did not use any images at all from the films themselves.

The district court’s ruling in the case was odd, to say the least. It accepted the fact that AVELA only used public domain works… but then seemed to argue they were covered by copyright anyway. Basically, the court argues that the characters in these films have enough characteristics that qualify for copyright protection, that the very characters themselves get protection from the copyright in the movie, even if the images in the posters are public domain. Of course, this is complicated by the fact that, with The Wizard of Oz, many of those characteristics come from the original books… which are now in the public domain. The court simply ignores this point.

In effect, the court seems to be arguing that public domain works that later are included within a copyrighted work can effectively be covered by copyright. That seems immensely problematic for those who believe in the public domain. Hopefully the appeals court recognizes this as an error on the part of the district court.

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