Warner Bros. scored a $2.6-million legal victory Tuesday when a federal appeals court in Missouri upheld a ruling in a copyright case involving images from the classic movies “The Wizard of Oz” and “Gone with the Wind,” as well as several “Tom and Jerry” shorts. The decade-old case could set an important precedent in the entertainment industry because it addresses the boundaries of public domain material, and gives studios a legal upper hand in protecting their intellectual property.

At the center of the dispute is Leo Valencia, the head of several nostalgia and vintage companies that obtained images of the films from publicity materials, including posters and lobby cards. He licensed those images for a range of consumer products, such as shirts and lunchboxes, according to the complaint.

Warner filed a suit against Valencia and his companies in 2006, claiming copyright and trademark infringement. But the defense has argued that the images in question fall within the public domain because they were publicity material. In 2009, a court ruled in the studio’s favor and issued an injunction, but the decision was appealed. Two years later, the Court of Appeals for the 8th Circuit in St. Louis ruled that copyright infringement occurred in two circumstances — when the publicity images were used in three-dimensional objects, such as a statuette or action figure, or were combined with other images or text to create a composite image. But the court said that reproducing publicity material as an identical two-dimensional image didn’t constitute copyright infringement. The case was filed in Missouri because some of the licensees selling the products in question were based in the state. Damages for copyright infringement range between $750 and $30,000 per instance, according to U.S. law.

In its 2011 decision, the 8th Circuit court ruled that characters such as Dorothy and the Scarecrow, as well as Scarlett O’Hara and Rhett Butler, are sufficiently distinctive to merit character protection under the respective film copyrights. Court documents show that the defendants licensed the film images for use on shirts, lunchboxes, music box lids and playing cards. They were also used as models for three-dimensional objects such as statuettes, busts, figurines inside water globes and action figures.

Are the characters copyrighted and what does this mean to me?

Characters in the 1939 version of The Wizard of Oz are copyrighted. What this basically means to anyone trying to adapt the book into a movie or play is that you need to avoid inspiration from the Judy Garland version (to the best of your abilities). Maybe reread the other books and watch the other films to see how they’ve embodied the characters differently before you flex your creative muscles and reimagine the characters. If you are going to use the 1939 version as your inspiration, you are going to need permission from MGM studios, and good luck getting that. Any other path and you risk getting sued.

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, except for any aspects of the characters that were injected into the public domain by the publicity materials. The court’s statement that the film copyrights cover ‘all visual depictions’ of the characters recognizes that there is often a quintessential version of a literary character that exists in the public’s mind as a result of a popular film adaption.

The general look of the characters as seen in the illustrations as well as the words and the plot of the book are protected by copyright to the extent that those things can be protected. All of the dialogue in the film that appears in the book is in the public domain. So don’t take an original line from the 1939 movie. Costumes are almost never subject to copyright, so the costumes can be reproduced. The specific look of the characters has a thin level of protection; those iconic looks are only protected to the extent they differ materially from the illustrations in the original book. This means that if you’d like to draw and sell a photo of the Tin Man from the Wizard of Oz, you can draw him similar to or an exact replica of the Tin Man from the original children’s book. But this also means that copying young Judy’s Dorothy down to the very detail may get you into trouble. Having an actress that sounds exactly like her and looks exactly like her may get you into trouble. Similarly, your actress can wear red shoes, but she can’t wear The Ruby Slippers.

Keyword: Copyright Infringement, Trademark infringement, Warner Bros., public domain, Wizard of Oz.