Dorothy, the Tin Man, Lion and Scarecrow may forever delight audiences with their trek on that Yellow Brick Road, but some legal analysts say the Eighth Circuit Court of Appeals has its own tough course ahead as it decides whether public domain works involving these characters and others may be resurrected and protected by copyright? A case arising in St. Louis also asks the question: What is the public domain?

The court recently heard an appeal from Dave Grossman Creations Inc. et al. (DGC), a group of multimedia licensing and merchandising agencies, seeking to overturn  a lower court judgment that the agencies’ use of images from public-domain publicity artwork infringed on Warner Bros.’ copyrights of characters from Tom and Jerry, Gone with the Wind, and The Wizard of Oz.  The appellees contend they should have the right to use images from The Wizard of Oz because they have fallen into the public domain.
The agencies say their business model relies on the concept of the public domain, as they take images from classic movies, television programs and other works in public domain, restore them and license these versions for use on T-shirts, toys and other merchandise.  The infringement in question was DGC’s use of public-domain publicity artwork containing characters from Gone with the Wind, The Wizard of Oz and the Tom and Jerry cartoon.

In Warner Bros. Entertainment et. al. v. Dave Grossman Creations, Inc. et. al., a district court in Missouri acknowledged that the DGC’s artwork was not a copy of the copyrighted films or cartoon but of public domain publicity artwork.  But the popular characters, as they appear in films and publicity artwork ,have developed sufficient distinctiveness in copyrighted works so as to gain their own copyright protection, the court said, noting: “Each [character] has been extensively developed through the films.  Be it Dorothy’s inherent wisdom coupled with her Midwestern farm girl innocence, [or] Scarlett O’Hara’s seemingly ruthless will coupled with her beauty and charm.”  And though the publicity artwork depicting them has fallen into the public domain, the characters have not.  The district court held that the unaltered, unmodified public domain artwork in its entirety may be used, however, use of individual Warner Bros.’ characters constitutes a copyright infringement.

The district court did not outright mention that the Wizard of Oz originated from L. Frank Baum’s 1900 novel The Wonderful Wizard of Oz. That book now is in public domain. The lower court hinted that, but for the films, the Wizard  characters would have remained literary depictions without the “idiosyncracies that have established each character as an American icon.”  This opinion suggests that a public domain work potentially may be resurrected, if a subsequent copyrighted work in some way adds distinctiveness to it. Many believe this opinion is contrary to the very core of what the public domain is.