Introduction
For my project, I chose to hold space for the new Wicked movie (if you get it, you get it), and investigate how intellectual property protections manifest in the creative decisions made in the filming of the movie.
There is a tension in intellectual property law between creative adaption and the protection of existing IP rights. These tensions are particularly saliant in the context of derivative works, adaptations, and transformative uses. These realities manifest in Wicked, the new musical adaptation of the 1995 novel by Gregory Maguire titled Wicked: The Life and Times of the Wicked Witch of the West. Both Wicked and the 1995 Maguire novel build on the The Wonderful Wizard of Oz and its many adaptations.
The original The Wonderful Wizard of Oz, published in 1900 by L Frank Baum, is now in the public domain as its period of copyright protection has elapsed.[1] That said, Warner Bros maintains copyrights to the 1939 MGM movie, The Wizard of Oz.[2] This raises interesting creative decisions, presumably taken for intellectual property reasons, in the Wicked film adaption.
Tracing the Intellectual Properties of Wicked
Works are in the public domain when they do not enjoy copyright protections, either by reason of expiry of copyright protections or ineligibility for copyright protection. In Canadian law, literary work and dramatic works (e.g. cinematographic work or compilations of such works)[3] that enjoy copyright protection cannot be reproduced or adapted as cinematographic work.[4]
Wicked exists within a patchwork quilt of intellectual properties dating back to 1900s. For example, the 1939 film arose out of a $75,000 purchase by MGM for the rights to the 1900 book by Baum.[5] While Baum’s book entered the public domain in 1956,[6] many of its elements retain protection by virtue of the copyright on MGM’s 1939 film. That said, new elements were also introduced in the 1939 film adaptation. The Wicked Witch of the West, the green witch with a pointy hat, comes from the 1939 adaptation, along with the popularized ruby red slippers.[7]
Maguire’s 1995 novel is a revisionist take on the original 1900 novel by Baum.[8] Nonetheless, elements such as the green colour of the Wicked Witch of the West —which shows up in the 1939 film but not the 1900 novel by Baum—are employed by Maguire. I was not able to locate archival information on licenses obtained by Maguire. This is likely for two reasons. First, the copyright protection for Baum’s novel had lapsed by the time Maguire wrote his novel, which meant the content arising from the book was in the public domain and subject to use. At the same time, if Maguire used content from the 1939 film, because the film was a revisionist take, it likely skirted the need for a license by effectively creating a parody.
Copyright-protected material can be used without permission when it is done so for the purpose of parody under the doctrine of fair dealing in Canada and fair use in the US.[9] In Canada, parodies are (1) an evocation of an existing work with noticeable differences and (2) express some sort of mockery of humour.[10] The use of a parody must also be fair.[11]
Wicked, however, follows the general plot of Maguire’s novel.[12] As a result, license to copy the novel was needed by the filmmakers from Maguire. This was obtained by Stephen Schwartz, executive producer of the 2024 film and composer and lyricist to the soundtrack and the Broadway iteration.[13]
Defying Intellectual Property
Both Maguire’s 1995 revisionist novel and the 2024 Wicked film defy potential intellectual property infringements by avoiding elements protected by copyright and trademark law.
One primary way that copyright infringement is subverted in the Maguire novel and 2024 film is by retaining the silver colour of Dorothy’s slippers. This choice is somewhat significant as Dorothy’s slippers have been popularized as ruby red because of the 1939 MGM film. The choice to make Dorothy’s slippers ruby red rather than silver was a creative choice made in the making of the 1939 film to show off the film’s technicolour production.[14]
Image: https://nerdist.com/article/wicked-silver-shoes-instead-of-ruby-slippers-wizard-of-oz/
The depiction of the Wicked Witch of the West as green came out of the 1939 MGM film, not the original 1900 book by Baum. Nonetheless, Maguire retained the green colour for the Wicked Witch in his 1995 novel. That said, as a character, she is different. In the 1939 film, she is known as the Wicked Witch of the West. Here, she is portrayed as malicious. In Maguire’s revisionist novel, however, and in the 2024 film, the Wicked Witch of the West becomes Elphaba—a complex protagonist that is misunderstood and sees beyond the status quo of society. In this sense, Elphaba is a parody of the earlier 1900 novel and 1939 film. Nonetheless, she is still green—a feature from the copyrighted 1939 film.
Presumably to avoid any copyright infringement, the 2024 Wicked film changes the colouring of Elphaba from that of the Wicked Witch in the 1939 film. Her makeup is less dark. Her clothing has aesthetic quality and goes beyond the black robes in the 1939 film. While these choices may be largely creative, they also avoid direct copying of copyrighted features from the 1939 film.
There are also numerous trademarks held by Warner Bros in association with the 1939 film. Over the years, Warner Bros has been active in challenging trademark registrations and alleged copyright infringements.[15] The makers of Wicked, then, had to be extremely careful in the making and marketing to avoid infringing a host of existing protections.
In the end, navigating the complex web of intellectual properties held by Warner Bros in the making of the Wicked film is an interesting case study on the need to creatively adapt protected elements to defy existing protections.
References
[1] US Copyright Act of 1976.
[2] Eriq Gardner, “Warner Bros. Wins Key Legal Ruling Impacting All ‘Wizard of Oz’ Remakes”, The Hollywood Reporter (6 July 2011), online: <https://www.hollywoodreporter.com/business/business-news/warner-bros-wins-key-legal-208255/>; Megan Olson, “The Wonderful Wizard of Copyright Laws”, Trivia Mafia (9 August 2024) [Olson]
[3] Copyright Act, RSC, 1985, c C-42 at s 2 [Copyright Act].
[4] Copyright Act, ibid at s 3(1)(e).
[5] Kalie Rudolph, “The Golden Era of Hollywood: The Making of The Wizard of Oz and Gone with the Wind” (2011) 2:2 Voces Novae 159.
[6] Bond, Schoeneck & King PLLC, “Copyright and the Wizard of Oz” (10 June 2012), online: <https://www.bsk.com/higher-education-law-report/copyright-and-the-wizard-of-oz>.
[7] Olson, supra note 2.
[8] Elena Nicolaou, “‘Wicked’ fans are warning about the book: It’s very different than the musical”, Today (21 November 2024), online: <https://www.today.com/popculture/books/wicked-book-musical-differences-rcna180333> [Nicolaou].
[9] Copyright Act, supra note 3 at s 29.
[10] United Airlines, Inc v Cooperstock, 2017 FC 616.
[11] CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13.
[12] Nicolaou, supra note 8.
[13] Diep Tran, “Everything you need to know about ‘Wicked’ on Broadway”, New York Theatre Guide (25 February 2022), online: <https://www.newyorktheatreguide.com/theatre-news/news/everything-you-need-to-know-about-wicked-on-broadway>.
[14] Olson, supra note 2.
[15] Eriq Gardner, “Disney, Warner Bros. Fighting Over ‘Wizard of Oz’ Trademarks”, The Hollywood Report (13 February 2012), online: <https://www.hollywoodreporter.com/business/business-news/wizard-of-oz-disney-warner-bros-289305/>.
Copyright & Social Media
Communications Law