1

According to Wikipedia, this photo of the Wizard of Oz' famous scarecrow is in the public domain.

Suppose I used the scarecrow as a symbol of farmers in a book, with the Tin Man serving as a symbol of workers. I might use public domain images of each, or I might hire an artist to draw line-art images or cartoons.

On a page where I discuss the decline of agriculture, I might feature a Scarecrow photo or icon as a symbol of farmers. Similarly, an article about labor violence might feature a Tin Man icon.

Is it possible that such usage could be deemed illegal? For example, the photos or derivative images might be legal, but whoever owns the right to the movie The Wizard of Oz might claim I have no right to use its characters as symbols, mascots, etc.

2

The original novel, The Wizard of Oz was published in 1900, and so is out of copyright in the US, and probably in most if not all other countries as well. Thus neither it, nor any of the characters contained in it, are protected by copyright. The original illustrations from that book are also not under copyright. Any new images of any of the characters, based on the book, not any film, would be copyrighted only by the artist (or the artist's employer if they were works made for hire).

Wikipedia claims that the publicity photo of Roy Bolger in costume as the Scarecrow from the 1939 MGM film is in the public domain, and this seems plausible. (Note that the photo is not a still from the film itself.) Under US law in the 1930s thru 1976, publishing a work such as a photo with no copyright notice forfeited any copyright, unless the publication was unauthorized. But the question asks if use of the photo might be claimed to be an infringement of the copyright on the film. I am inclined to doubt that such a claim would be successful, but that is an issue on which it would be a good idea to obtain quality legal advice. I am not a lawyer.

Use of the character not based on the 1939 film would not be subject to a copyright claim, in my view.

Update: If it were held that the publicity photo was a trademark of the 1939 film, or of MGM, then it would be an infringement to use it in designating a product or service, or in advertising a product or service for sale. But use of it in a book describing farm or labor conditions is probably not "use in trade" and so would not get trademark protection. Again, use of the original illustrations from 1900, or new images based on the original book and not on the film would avoid this issue. Again, expert advice on what would or would not be a trademark infringement would be a good idea to avoid possible suits, because even losing suits are expensive to defend.

All this is primarily under US law, although the general principles should apply elsewhere.

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  • As I recall, subsequent developments in the case mentioned in the WP article found that although the photograph was in the public domain, its use in certain commercial contexts was still a trademark violation. So don't let the copyright analysis be the end of the discussion. – bdb484 Oct 15 '18 at 21:46

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