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Did A Court Just Accidentally Outlaw Remakes?

By Alyssa Rosenberg on July 6, 2011 at 6:34 pm

"Did A Court Just Accidentally Outlaw Remakes?"

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You know, I understand that overly restrictive copyright laws are a bad thing that stymie innovation and empower corporations. But if they’ll save me from having to see a remake of The Wizard of Oz, that’s a powerful argument in their favor. As the Hollywood Reporter’s Eriq Gardner reports, Warner Brothers yesterday won a court decision in an unrelated merchandising case that says the characters in movies that are adaptations of other works can be copyrighted independent of the copyrights on those individual works:

There are nine Wizard of Oz projects currently in development, by one count, including a big-budget 3D film by Disney directed by Sam Raimi and starring James Franco that’s meant to be a prequel to the classic film. Might these films have to be very, very careful going forward? One lawyer believes so.

“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,” says Aaron Moss, the chair of litigation at Greenberg Glusker. ” Any filmmaker that wants to create a new version of a literary work—even one in the public domain—needs to be careful not to use copyrightable elements of characters that first appear in protected motion picture versions of the works. Of course, when it comes to characters depicted by live actors, this may be easier said than done.”

Obviously, I don’t actually believe there should be a law against making crappy, derivative knockoffs and revisitations of classic movies (and even non-classic movies) even as I wish there were a lot fewer of them. In any case, I tend to think that there are some works so powerful that there will never be a straight remake of them — variants on Oz projects probably wouldn’t want to ape the original too closely in any case, and I don’t think we’ll ever see another attempt to make Gone With the Wind. And if this decision stands and becomes an anti-competitive tool, it’s more likely to have studios seeing how close they can get to the line where they’d trigger a copyright violation (are we ripping off Lara Croft if we take her down a cup size?) rather than embracing originality as a way to stay lawsuit-free. But man are there times — a moment when we have NINE Oz projects going at once, not to mention the millions of Snow White projects that are underway — when I despair for original content.

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