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Public Domain Rights and Copyright Clash Over The Wizard of Oz and Gone with the Wind

Posted by Nicholas O'Donnell on January 6, 2012 at 4:15 AM

The 8th Circuit recently weighed in on the topic of public domain images and copyrighted characters. As my colleagues Kimberly Herman, Michael Matzka and Laura Stacey explore in greater detail in an advisory about the decision, a number of merchandisers were using images from public domain posters and lobby cards from movies like The Wizard of Oz, Gone with the Wind, and Tom & Jerry. Although the posters themselves were in the public domain (and complete reproductions of those posters were not infringing) the 8th Circuit analyzed further the status of the characters, not merely the images of them. A balance is struck between the right to make derivative works from public-domain images (protected) versus uses that conflict with further development of the character by the copyright holder (infringing). Also discussed is the difference between a character from a public-domain book (e.g. The Tin Man) and an original creation in the film (Tom or Jerry). My colleagues’ treatment of the decision fleshes these points out in fuller depth.

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Topics: Michael Matzka, Infringment, The Wizard of Oz, Kimberly Herman, Gone With the Wind, Laura Stacey, Copyright, Fair Use

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About the Blog

The Art Law Report provides timely updates and commentary on legal issues in the museum and visual arts communities. It is authored by Nicholas M. O'Donnell, partner in our Art & Museum Law Practice.

The material on this site is for general information only and is not legal advice. No liability is accepted for any loss or damage which may result from reliance on it. Always consult a qualified lawyer about a specific legal problem.

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