Annie Kuo Becker (AKB): Welcome to Discovery, the podcast where we explore the ideas, scholarship and people shaping the future of law. I'm your host Annie Kuo Becker. Today's episode takes us somewhere over the rainbow. We're going down the yellow brick road of copyright law. We're talking with Professor Peter Nicolas about his fascinating new copyright law case study course built around one of the most endearing stories in American culture, The Wizard of Oz.
We're also going to talk to Peter about the new Joanne Taricani lecture at UW Law that just launched this winter. From L. Frank Baum's original book, The Wonderful Wizard of Oz to MGM’s iconic film, to the book and musical The Wiz to Wicked, also a book and musical and the new Wicked film series, this course uses Oz to explore the evolution of copyright doctrine across more than a century.
In addition to Professor Nicolas's primary appointment at UW Law, he holds an adjunct professor appointment in the School of Music. He is our William L. Dwyer Chair in Law and director of the Intellectual Property Law and Policy graduate program.
Peter, welcome to the podcast.
Peter Nicolas (PN): Thank you for inviting me.
AKB: So, let's start with the new Joanne Taricani Lecture that just launched this spring. Could you tell us about what makes it meaningful and tell us what it's about.
PN: Sure, and like most bequests, it starts with something sad, which is the premature death of Dr. Taricani, who was a long-time faculty member at the School of Music, teaching music history and also the director of the School of Music. She had left a bequest in her will that was to be used to invite someone each year to speak on issues at the intersection of music and law.
It happens to be very fortuitous, because right around the time that she passed away and made the gift, ironically enough, I was on a leave from teaching at the law school to go back to school and fortify my credentials within the field of music, and I was studying to teach and research at the intersection of those two areas.
The very first speaker that we brought out, Judith Finell, was an expert in a very famous case, the Blurred Lines case involving a claim that that song had infringed on one of Marvin Gaye's copyrights. And not only did our community benefit — the law school community, the university community, many people from the public who attended — but the following day, Professor Finelll spoke to my students in my music, law and policy class about that case, a case that I teach every year. But what better to do than bring someone who actually was involved in it?
AKB: So, let's pivot to your new course, which uses The Wizard of Oz as a case study. That's not your typical copyright syllabus. What makes Oz the perfect copyright laboratory?
PN: So, it has, as you spoke at the beginning, a long pedigree, starting with a book that was published in 1900,
to a well-known movie that, even though it first came out in 1939, almost all the students in the class have been exposed to that. Most actually have never read the book. Most have seen the 1939 movie. Later on, you get The Wiz, which takes an African American spin on the entire story, first as a musical, later as a movie, and then, of course, the book Wicked and the movie enterprise.
So, why did I think that this made sense? First, it remains culturally relevant, which means students are drawn in, the sort of hook. And the number of students who wrote me even to say, I haven't had the prerequisite for this course, but I will spend Christmas break studying whatever I need to study to take this. The passion of the students was great, and so it's something that they were excited about.
Also, because of that time period — things beginning in 1900 and going right up to 2025 — it is bridging so many changes in copyright law. The very first book that we talk about, L. Frank Baum's book The Wonderful Wizard of Oz is actually governed by a law passed in 1831. And then it pivots when it's time to renew the copyright to a 1909 Copyright Act, which also governs the MGM movie. We eventually get into The Wiz which is pivoting between the 1909 and 1976 copyright acts, and then by the time we get to Wicked, we're both in the 1976 act. Then all of this is affected by the Sonny Bono law. So, there's so much legal change going on, and so many changes in how the Copyright Office keeps records. And so it's valuable for teaching students about legal changes over time using a very vivid case study.
AKB: Yeah, it's like 125 years of a time capsule to study copyright law. What are the core legal issues that the students are grappling with?
PN: So, every week, I start by saying, figure out the copyright status of this work. How did it get a copyright? What did the creators need to do to get that copyright? And they have to dig into the law at the time and the Copyright Office records, which are scanned in different ways or digitized, and it takes a lot of work.
What they may have learned in their basic course in copyright, the rule in the abstract may make sense, but when you get your hands dirty, it's really tough, and I want them to see that part of it. Once they've done that, they have an assignment at the very beginning. They read L. Frank Baum's original book, which almost none of them had done. And they adopt for the entire quarter three characters and a plot element. And they get some choice in how they're going to do that. And they have to start by explaining to me and the class what is it about those characters and that plot element that make it distinctive enough that it warrants copyright protection, and we're tying it back to copyright Law.
As they then examine the works that follow, they have to figure out, what did that work either add to the original work, which either they might have done with permission in the case of the 1939 movie, or the later works because it's now in the public domain. And they are free to use whatever was in Baum's book, but not the movie, which still is copyright protected today, the MGM movie until 2035. And then when they get to things like The Wiz, the book Wicked, the movies Wicked, I asked them, do you see any legal risks that were taken? Do you see places where the people creating one of the Wicked movies or the stage performance of The Wiz pushed the envelope? If they're not careful, they can be found liable for copyright infringement.
And then I also tell them identify places where it seems clear that maybe a lawyer or someone told them don't do this, and it looks like they're doing that. And I want the students to imagine a future where they are actually sitting down with creators, whether it's in the field of music, in the field of writing books, in the field of creating stage performances, movies and being able to get their hands dirty with the creative materials and know enough to spot potential copyright problems.
AKB: I came along with the class to The Wiz, the Broadway musical that was here in Seattle at the Paramount Theater, and noticed that Dorothy was wearing silver slippers instead of the ruby red slippers. And this kind of leads us into the next question, because apparently on a lot of these renditions, Dorothy is not wearing the MGM-copyright-protected ruby red slippers, which is the expression of an idea. I believe I've picked up from attending a couple of your classes now that the copyright law distinguishes between an idea and the expression of idea. Could you kind of explain this to us about how copyright law distinguishes between those two concepts? Sure, and
PN: I will do it, but preface it with the point that there is always a gray area in between, right? The balance of copyright law is to say, on the one hand if you are a creator we want to give you some protection, some monopoly over your creation.
The idea of going from the real world to a fantasy world. If you were the first person to write a book or a movie or a musical about someone pivoting from the real world to an imaginary world, well, that idea is not something you can take control of. And of course, you see that in so many places, right? Obviously, The Wizard of Oz is an example of that, right? So is The Lion, the Witch and the Wardrobe, right? So are so many things. So, that broad idea is not something that you get to control. Or a love story between two teenagers from different warring families. Again, a broad idea.
On the other hand, your specific expression of that idea, and what do we mean by that? That's the detail. What's the specific dialog, the specific costuming, the specific characteristics of the individual characters in it. If there's music, the specific music, that's the part that is protected.
And then you pointed to a specific example, the ruby red shoes. And you asked why the other things like Wicked and The Wiz used silver shoes. Okay, so we go back to L. Frank Baum's book, the shoes were silver. So that idea, that particular expression of creativity we know is in the public domain. MGM decided in 1939 that it was going to take advantage of this new technology, which allowed it to put brilliant colors in and have a very particular — I mean, the shoes are stunning in their design coupled with their color. So, it's kind of the whole thing. You look at it and you're like, those are Dorothy's shoes, as I remember them. That is something that they vigorously protect as part of their copyright. And as you noted when you saw The Wiz, they were silver because that's safe. You know, if you go back to the book you're not violating copyright. In Wicked they're silver. There actually is a Disney movie from the 1980s that is designed to be a sequel to the original Wizard of Oz. It wasn't produced by the same people, it was produced by Disney, and they wanted ruby red shoes, and they have ruby red shoes, and they paid for the rights to do that.
So, that's an example of in our class, when we talk about things, everybody notes the ruby red shoes as something that the movie added. And when we move forward to the present and what you can do and what you can't do, taking that expression of an idea, a particular visual look of the shoes, is something that's part of MGM copyright and remains so today.
AKB: So, the Wicked Witch of the West was green. Her skin was emerald colored in the MGM movie, but when we see her, you showed in your class yesterday that she was also green with the black pointed hat — having not taken your full course, I wonder how that was possible, given that The Wiz musical had a different depiction of the bad witch, which was depicted very differently.
Can we turn to copyright in terms of character protection? How is character copyright addressed?
PN: So, it's a complex area, and indeed, copyright law has recognized that if a character in a creative work is sufficiently distinctive, then the creator of that character, kind of, owns that character, so to speak, such that if you write a new story, even if it's a completely different plot, but you take that character and you incorporate it, you have violated the copyright.
Now, it has to be a high level of distinctiveness. So, as we went through the course, we talked about that with different characters, and you've hit on a particular one. So, if you go back and read L. Frank Baum's book, The Wicked Witch of the West is, well, she's mean because she's a witch, but she's kind of dorky looking. I'm just going to say, if you go back and look at it, she's not green. She's got kind of messy hair. She has a pointed hat, but it's more like a dunce hat. She's got a patch over one of her eyes, just kind of an odd ball, but she's got some magical powers, and she's not even a central character in L. Frank Baum's book. That's something that surprises people. She's off to the side. She's one of Dorothy's many adventures.
Now, we jump to the MGM movie, and from the get-go, this witch is all everywhere all the time, right? She pops up early on, she's angry. She clearly wants those shoes, and she's there almost to the very end of the book when she melts. What is the character of the Wicked Witch of the West in the 1939 movie? As you pointed out, it's green, not just green, but a very particular shade of green that MGM came up with, a particular set of facial expressions, right? The way the nose is shaped, the way the chin is shaped, the clothing, right? So, these are some when we talk about characters, their visual appearance is part of it, but not all of it. At least equally important I would say are the personality characteristics.
And wow — Margaret Hamilton created such a memorable character with, as you said, that cackling, some of those phrases, the facial expressions, just the way she looked at people. It's the whole package. And one of the things I try to have the students do is describe this — and it's sometimes hard to describe, right? That is the job. If you're as a lawyer going to argue that someone has taken a character, you have to be able to make those arguments.
So, let's fast forward over to Wicked both the book and the movie. Now, when you have a book, it leaves a little more open to the imagination. There are some illustrations in the book that have some similarities, but the character of Elphaba in the Wicked book and movie is a bit different, right? It's not all encompassing evil and anger. She's like a complicated psychological character, right? She was, kind of, born in tough circumstances. I don't think her parents treated her very well. She wasn't treated well in school. And so this is, kind of, the theme of Wicked, like, are you born evil, or do you become evil, right? And this whole idea of now we're looking at it from the development of the witch and seeing where she gets to. We don't get that cackling, right, that characteristic.
When we pivot to the movie, right, we see the character, the Wicked Witch of the West, is green, but not necessarily the exact shade of green, right? And visually, she's different, right? She's, to begin with, right, as a baseline, before you add the green, she's clearly more of an African American, right, as opposed to a Caucasian individual. Her features are softer, right? Margaret Hamilton's makeup made her look really harsh, and Elphaba has a little bit of a softer appearance to her and to her personality, right? She eventually develops some evil we see certainly in the book. And we're still going to see the movie, right, next week, and we saw the first movie in class this week, and we're going to watch the second half soon to see how her character develops. But you see how we're talking about it. We're kind of pivoting back and forth between visual appearance and some of the more personality characteristics of the character.
AKB: It's really fun visiting your class, and seeing on the display, one is your slides, and the other slide is like different scenes that you've picked out to show as part of your instruction. What makes this more than just a deep dive into pop culture?
PN: So, it's a bit of a trick, right? The hook is, here's something I find interesting from a cultural standpoint and therefore understand it. I'm not a patent person. I'm a copyright person. And honestly, when I've read patent cases about some complex invention that means nothing to me as a person, it's hard to get into the case and understand it.
I've talked to people who teach patent law and the people who know how to do it, try to identify some piece of technology, like an iPhone or something that the students can relate to, and I think that's the same here. I'm picking something that every student in the class has been exposed to, at least part of this cultural phenomenon, and then having been drawn into it and understanding it from that standpoint, they can then dig into the law and do it in an intelligent way.
AKB: Actually, I got an email from one of your students, who is an international student from Sri Lanka in the IP LL.M. program and she says she feels so lucky to have had this experience of taking her class, and it's reminded her of how joyful learning can be. She said it's brought a lot of copyright concepts to life in the most engaging way, and experience in The Wiz on Broadway is a moment she'll never forget, plus the very illuminating conversation the following week about comparing the characters and you know, digesting these, these different legal concepts.
What are some highlights or fun reflections or reactions from your students?
PN: Yeah, so I think that a couple of things. Obviously, the field trip to the Paramount. And I wanted people to understand this was not just a field trip for fun, and I think you saw it, all of the students either had their phone out or a piece of paper and a pen, because maybe not that night because we all got home late, but the next couple days they had an assignment, and that was where did we see clear efforts to avoid being accused of copyright infringement? Again, the sort of things if they were a lawyer representing that particular set of performers, that particular troop, they might be advising, like, I wouldn't do that. I mean if you're to the extent you're adding that beyond the actual original Wiz, you're kind of creating some risk here, and there is obviously gray areas. That's why we have lawyers. But this is a rare opportunity for students to get this experience before they're actually hired by a firm, and then clients to sit and start doing this where students are getting that kind of hands-on ability to really get into the creative works in the way that we do.
AKB: Yeah, it's a very innovative way to teach. I actually quipped to my colleague sitting next to me at the paramount that if, hmm, you see a group of students scribbling on notepads in the dark, they might be student lawyers. So, as the new Wicked films reach audiences, does that create new legal questions? This could go on and on, the time capsule expands.
PN: Absolutely. And there's a couple of things that are lessons from the Wicked movies. First, as you pointed out, this is 125 years, and when we talk about how long copyright terms should be, one of the facts that is valuable — so, L. Frank Baum's book entered the public domain in 1956. That means that for roughly 75 years, anybody has been able to take that story and take it in a particular direction. And how beneficial has that been for us as a society? Because I can tell you, I derive tremendous enjoyment out of the Wicked movies. I derive tremendous enjoyment as a kid watching the movie The Wiz. There are other books out there that are spin-offs on the story of The Wizard of Oz. And so it's a reminder that there are benefits to copyrights coming to an end because we continue to benefit as a society when the restrictions of law are gone and people can go out and create. So, that's one lesson from these Wicked movies in the book.
I think another thing that's coming out of the Wicked movies, and that we started in class last time and we'll conclude with next time, is the people who created the movies are pushing the envelope. They are putting stuff in there that certainly reminds people of the 1939 MGM movie. And we were beginning in class to debate idea versus expression of idea — some of the stuff we were talking about today. I was looking at the newer movie, and there was one scene, I'm not going to talk about it now, but it'll be something in class and for future classes, where I was like, wow, that looks awfully familiar to me. And that's the question because there's a push-pull within any creative work, right? Because you've got the work, and then you've got the lawyers, and they're going to give their advice on what you should or shouldn't do. At the end of the day, you got to decide, am I willing to tolerate the risk because of that, and we sometimes see modifications, and other times we see, no I think that really is within copyright law something I can do. And so far no suits, but it remains, always remains to be seen, right?
AKB: Yeah, and I think that's a challenge that you mentioned in class is like it when this copyright expires in —
PN: 2035. The copyright in the MGM movie has got less than a decade left. And this, by itself, is another interesting part of the story because you may be aware of the fact that down in Las Vegas The Sphere has had running for almost a year, a viewing of the original 1939 movie. But it's not just seeing the movie. They've added stuff to it. There's apples falling on you. There's lots of 4D effects in the 1939 movie, see the clock ticking. They're starting to say, what can we have for the future that is newly spun off of our movie, which itself would be entitled to a copyright that would last for a long period of time? So, this can keep going on forever. And I think the closer we get to the end of the movie’s term, the more we're going to see of that. And of course, these new creative works, The Wiz, Wicked the book, Wicked the movies, each get their own copyrights with long terms. And so as other people decide to take this enduring story and put it in a different direction, they need to be mindful of not infringing on any copyrights that those works have. And one of the copyrights in The Wiz could be as late as 2090. So, if you’re thinking about that, we're thinking 200 years almost after L. Frank Baum's book. We don't even know when the Wicked book is going to enter the public domain because its author Maguire, is still alive, but it'll be 70 years after he dies. Even if he died today, we're talking about a copyright that's going to endure almost to 2100.
AKB: Thank you so much for the case study, kind of, highlights and about your very innovative course that you're going to be teaching every spring.
PN: So, I'll be teaching this course every winter for as many years as there's interest, which I suspect will be for quite a while.
AKB: Well, it's been 125 years and counting for the original. Thank you so much for your time and sharing this, this course roadmap with us, and we're looking forward to following along.
PN: Well, thank you for inviting me.
AKB: Professor Nicolas teaches courses on copyright; music, law and policy; and music industry deals. And his current scholarship focuses on the intersection of the two fields. He's earned degrees in music at Shoreline Community College and the University of Washington, with a focus on music theory, music history, piano and popular and classical voice.
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