New ruling could put James Franco’s “Wizard of Oz” prequel in danger

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As you probably know, the reason why there are so many modern versions of characters like Dracula, Alice, and Dorothy Gale is twofold. For one thing, they're incredibly popular and well known. For another, these characters and their stories are public domain — no one's paying royalties on these babies! Which is why we have The Wiz, Wicked the book, Wicked the musical, Return to Oz, Lost Girls, and many upcoming film adaptations, prequels, and reinterpretations of L. Frank Baum's novel — the most buzzy of which is probably Oz, The Great and Powerful, directed by Sam Raimi and starring James Franco, Rachel Weisz, Mila Kunis, and Michelle Williams. People can just take these characters and run with them without paying a dime.

Except maaaaaaaaybe not. Because a new ruling this week by the Eighth Circuit Court of Appeals could potentially muck up some of these projects, with Raimi's looking the most troubled. The case was this: Warner Bros, which owns the rights to the 1939 classic film version, was suing a memorabilia company for its use of images from the film. The company felt this was fair use, since The Wizard of Oz is public domain. The Court diagreed:

We agree with the district court’s conclusion that Dorothy, Tin Man, Cowardly Lion, and Scarecrow from The Wizard of Oz.. exhibit “consistent, widely identifiable traits” in the films that are sufficiently distinctive to merit character protection under the respective film copyrights… Put more simply, there is no evidence that one would be able to visualize the distinctive details of, for example, Clark Gable’s performance before watching the movie Gone with the Wind, even if one had read the book beforehand. At the very least, the scope of the film copyrights covers all visual depictions of the film characters at issue…

Basically: you can use Wicked Witch of the West, but if you plan on giving her green skin — a feature not included in the book — you might want to keep an eye out for Warner Bros' lawyers. Given that Raimi's Oz is meant to be more or less a prequel to the film and the book (somehow), this could be trouble. The studio apparently has no plans at the moment to go after the film, but the producers might want to tread carefully.