Wicked Legal Issues

[best12bars]

Posted: 8/1/05 at 11:21am

I posted this question/issue on a hijacked thread the other day, but I'd like to know if anyone out there can tell me how Wicked (both the novel & musical) is getting around it:

The book (The Wonderfu Wizard of Oz) by L. Frank Baum was written and published first in 1899. This book is in the public domain now.

WHAT'S IN THE BOOK (AND THEREFORE PUBLIC DOMAIN WITH NO RIGHTS ISSUES WHATSOEVER):
- Dorothy is a farmgirl from Kansas who wears a blue checked gingham dress.
- She melts the Wicked Witch of the West unintentionally, by throwing a bucket of water on her.
- The Witch of the East's magic shoes are silver.

WHAT'S NOT IN THE BOOK (...AND THEREFORE QUESTIONABLE AS TO HOW WICKED IS LEGALLY INCORPORATING THESE SPECIFIC MGM MOVIE ELEMENTS INTO THEIR STORY):
- The Witch of the West is not green-skinned in the book. She's an old hag with one eye, who can't bleed because she is so evil.
- The wicked witches of the East and West are not sisters.
- Consequently, the Witch of the West is not avenging the death of her sister, nor does she desire the Silver Shoes until she sees them first on Dorothy's feet. She sends the flying monkeys to bring Dorothy to her castle, because she is angry with Dorothy for trespassing in her territory. It has nothing to do with the shoes.
- Glinda (the Good Witch of the SOUTH) makes no appearance in Munchkinland right after the Witch of the East has been killed. It is the "grandmother-like" Good Witch of the NORTH (a totally different character) who does this. She is no relation to Glinda, by the way. The two good witches were combined for the MGM movie to make the part bigger.
- Glinda (yes, of the SOUTH) does not travel in a bubble of any kind. Dorothy and her gang have to make a long journey south by foot, after she melts the Witch of the West, to ask for Glinda's help in her castle.

People on this board have commented about legally "questionable" words or phrases from the movie, which I guess were an issue when the show was out of town... They had to clean those up. But these are MAJOR PLOT POINTS in the story, like green skin, bubbles and bad witches who are sisters, and they all come specifically from the MGM movie, not the public domain book.

Hmmm...

The MGM movie, along with its screenplay and visual likenesses, is not public domain material, and is currently jointly owned by Turner and Warner Bros.

[Fosse76]

Posted: 8/1/05 at 11:37am

"Wicked" is not a re-imagining of "The Wizard of OZ", rather, it is a satire. As such, it is protected from copyright infringement under the fair-use doctrine.

[HBP]

Posted: 8/1/05 at 11:42am

And was it really necessary to make a whole new post? You already posted that exact same thing in another thread.

Posted: 8/1/05 at 11:43am

This is just endlessly fascinating, isn't it?

Here's the scoop: They did it, they haven't been sued, they used some things, they didn't use other things. The shows coming up on 2 years on Broadway, plenty of time for anyone to get a lawyer and sue for a slice of that massively huge pie. Hasn't happened; Don't think it's going to.

Next?

[Fosse76]

Posted: 8/1/05 at 11:52am

"They did it, they haven't been sued, they used some things, they didn't use other things. The shows coming up on 2 years on Broadway, plenty of time for anyone to get a lawyer and sue for a slice of that massively huge pie. Hasn't happened; Don't think it's going to."

I also thought about mentioning that, but I thought I'd give the original poster the legal answer. Also, there would be a statute of limitations to bring suit, which I'm sure has been reached by now. "Wicked" is approaching two years on Broadway, but has been around for at least three, even if only on paper.

[Michael Bennett]

Posted: 8/1/05 at 12:06pm

You have to remember too, that some of the changes incorporated into the MGM film actually came from an earlier stage version of THE WIZARD OF OZ that was on Broadway in 1904. That, for example, is where Dorothy's last name "Gail" comes from. It was actually a bad pun (in keeping with the vaudeville tone of the musical) -- Dorothy "of the Gails" blew into Oz from Kansas.

Of course the 1904 OZ script is in public domain as well.

[uncageg]

Posted: 8/1/05 at 12:08pm

And I figured that was all taken care of during its pre-Broadway run. I also posted in the other thread. Kristin Chenoweth addresed this in an interview on Seth's Chatterbox. She said something to the effect that they found out there were certain things they couldn't say or do. She found out right before going on, I think it was the very 1st show, and she had to improvise a lot. If I remember correctly, her improvisation at that performance has mostly stayed in the show.

[timote316]

Posted: 8/1/05 at 12:15pm

Like everyone has said, they would have worked everything out. I'm pretty sure that a musical with the budget Wicked had thought of checking, double-checking and triple checking the legality of everything (ie. "Dorothy" is never said... "Toto" was changed to "Dodo"... etc)

[Michael Bennett]

Posted: 8/1/05 at 12:20pm

Well, Toto is a character in the original book. I don't think that was changed for legal reasons...

[best12bars]

Posted: 8/1/05 at 6:19pm

I wouldn't classify Wicked as a satire or spoof. Especially the original book which is pure fiction. The musical has more comedy in it, but still... it isn't really a send-up, like an SNL sketch. I'll bet that's the way they got around it legally, though. Satire... It's a very good guess, at least.

The statute of limitations on a copyright infringement is 3 years, not 2. Next...

But this also has to do with licensing MGM character likenesses, not just the written word. Must have been a fun time working that out.

The fact that Glinda calls the dog "Dodo" has more to do with her lack of interest than a change in name. It wouldn't be a copyright infringement if she did, since Toto is public domain.

Thanks to all who weighed in, heavy-handed as some of you were about it. I'm still curious how they worked it all out.

Updated On: 8/1/05 at 06:19 PM

[bella cantato]

Posted: 8/1/05 at 6:36pm

Kristin said in an interview that she had to change Toto to Dodo for legal reasons...

Updated On: 8/1/05 at 06:36 PM

[OtherDaryl]

Posted: 8/1/05 at 10:25pm

I'm reading the original source material for Wicked now, which is the novel by Gregory Maguire, published in 1995. It is likely that any major copyright issues were handled at that point. For example, the character in the book is Galinda, not Glinda.

And I'm thinking it is less satire than pretty strong political commentary.

[ElphabaRose]

Posted: 8/1/05 at 10:49pm

Legal issues are the reason that Dorothy is not shown (the dress is under copyright by MGM), why the "Bubble Dress" is blue, not pink, and why Nessa's shoes are silver, but shown in a red light. These things are all under copyright by MGM.

[JMVR]

Posted: 8/2/05 at 12:17am

I am hoping that they got a waiver from Turner for the likeness of the Witch. Her Defying Gravity getup is remarkably similar to the MGM witch and I don't think the satire approach would have worked in this case. At any rate, I am sure they got the necessary legal opinions in due time. These are no amateurs.

[Merrydothe]

Posted: 8/2/05 at 12:18am

If I remember correctly, which I may not be--I think that The Wizard of OZ is under public domain. Thats the reason why everyone can use the script from the movie and use it in stage productions. Just a thought-I COULD be wrong, but I remember hearing this.

[Michael Bennett]

Posted: 8/2/05 at 12:23am

MGM's depiction of the witch is VERY in keeping with traditional illustrations in fairy tales. Complete with green skin. It would be very hard to make any type of brand stamp on her image.

Dorothy also wears a checkered dress in the original book. I am sure there were some things MGM/Turner/WB may have brought issue with in the original WICKED script, but I'm pretty sure some of the things mentioned here -- "Dodo - not Toto," not depicting Dorothy on stage, etc were done for style or comic effect, and not because of copyright infringement issues.

The stage scripts that Tams Witmark licenses are largely based on the film script and thus are copyright. They aren't in the public domain. Only the original Oz books by L. Frank Baum.

[lfae]

Posted: 8/2/05 at 12:24am

In the book, Galinda changes her name to Glinda, so that wasn't a name change (ie. to Galinda) for any copyright reasons. Merely adding some depth to the character :)

[Fosse76]

Posted: 8/2/05 at 12:57am

"I wouldn't classify Wicked as a satire or spoof. Especially the original book which is pure fiction. The musical has more comedy in it, but still... it isn't really a send-up, like an SNL sketch. I'll bet that's the way they got around it legally, though. Satire... It's a very good guess, at least."

The original book is out of copyright, so there are NO copyright issues with the source material. The film references, however, are used to illicit a laugh in a manner which spoofs the film, therefore that particular material is protected as parody.

"The statute of limitations on a copyright infringement is 3 years, not 2. Next..."

So they wrote "Wicked, A New Musical" overnight and produced it on Broadway in a day? "Wicked" is at least three years old, and I know the Statute of Limitations has run out, which is why I mentioned it.

"But this also has to do with licensing MGM character likenesses, not just the written word. Must have been a fun time working that out."

In order to infringe on a copyright, it must be clear that an average person will confuse the work of the alleged "infringing" artist with that of the original protected work. That could hardly happen here, though I do agree that the Tin Man and the witch do look like the MGM counterparts. Either the producers can argue that it is parody (and while the dictionary definition indicates comedic purposes as an element of parody/satire, the law recognizes no such requirement), or they paid for the rights. This isn't a community-theatre show. This was done by professionals. Those are the only two options that can answer your question.

"The fact that Glinda calls the dog "Dodo" has more to do with her lack of interest than a change in name. It wouldn't be a copyright infringement if she did, since Toto is public domain."

Exactly. The same with the name "Dorothy". I don't think hiding her behind a curtain had to do with copyright, either...I think that really was an artistic decision. They didn't want the show to be about Dorothy, and by only showing her silhouette you keep the focus of the show on the two witches.

[best12bars]

Posted: 8/2/05 at 11:14am

"MGM's depiction of the witch is VERY in keeping with traditional illustrations in fairy tales. Complete with green skin. It would be very hard to make any type of brand stamp on her image." - Michael Bennett

Actually, no, Michael. I appreciate all your thoughts on this. But MGM is constantly credited with creating the modern "look" of witches they developed for Margaret Hamilton in the movie The Wizard of Oz. Before that one film, witches were depicted usually as old hags, stooped over, or sometimes as sorceresses. Not green-skinned, with a pointed black hat, long black dress and cape. Baum's own illustrator W.W. Denslow added a pointed hat (similar to his Munchkins) in his imaginings, but the hat had stars, moons, etc. more like a wizard's cap. That's as close as they came. After the Wizard of Oz (film) opened in 1939, the look of witches was forever changed, at least in the USA. I guess MGM should have (or could have?) jumped on the ball back then to protect their invented likeness. But I doubt they did it, since there are so many post-1939 witch depictions that look just like Ms. Hamilton. This probably worked in "Wicked"'s favor. Only Disney seemed to jump on likeness protection from the very beginning.

[Michael Bennett]

Posted: 8/2/05 at 11:23am

Best 12 -- MGM really didn't come up with that look, though certainly they made it popular. I'm not really sure where your info is coming from, but the traditional witch hat dates back hundreds and hundreds of years, as does the myth of a witch's skin as green from the bile of her evil. There's lots of stuff on the internet about the origins of the "traditional" witch.

There are also several books that doccument the "evolution" of the MGM costume tests for the witch. Originally Gale Sondergaard was cast, and was to appear beautiful, much like the Queen in the then popular SNOW WHITE. That look was dropped in favor of a "more traditional" costume.


http://www.witchhistorymuseum.com/

http://www.salemwitchmuseum.com/


Updated On: 8/2/05 at 11:23 AM

[apdarcey]

Posted: 8/2/05 at 11:53am

i have to stand behind mb on this one... you're just not right best 12.

[Sumofallthings]

Posted: 8/2/05 at 1:03pm

Michael makes an excellent point but you argued your point eloquently Best12, so kudos to you!

Posted: 8/2/05 at 1:22pm

considering Universal Pictures is part producer of the show as per their website, I wouldnt be surprised if the same opportunity was given to MGM and that all legal issues were long ago resolved...

[best12bars]

Posted: 8/2/05 at 10:16pm

I agree with you, Michael. And thanks for putting so much thought into it. The pointed hat (whether black or not) has been associated with witches and evil magic going back even as far as Medieval times. And there are some pretty eyebrow-raising Web sites out there that discuss it! I had no idea until I did a search. Woah. The two sites you pointed to both seem to have fairly modern images of witches depicted on them (20th century on one of them, for sure), even though they deal with far less recent historical information. Still, who's to say?

I was thinking more about the iconic image of the witch in total... The whole enchilada... all in black (the dress, hat & cape), long and lean (as opposed to hunched over), green skin, wielding a broom, etc. But I would bet money that your argument is exactly how they've blocked any legal action... on the fact that this iconic image was comprised of associated elements that were invented (individually) long before they came together in the Margaret Hamilton incarnation as a whole. And that she (with MGM) POPULARIZED this icon rather than invented it. I'm sure it's saving them a large wad of cash too.

Maguire didn't try to hide it very well. I've even read in early interviews that he was giving a nod directly to Hamilton's (MGM) witch in his book. He had Elphaba meet her untimely end at the age of 38... the same age Margaret Hamilton was when she made the film.