Wicked and the Importance of the Public Domain

Movies like Wicked draw on classic works no longer under copyright protection.

Every January 1, numerous creative works enter the public domain, meaning their copyrights have expired and they can be freely shared, sold, or adapted. Last year Mickey and Minnie Mouse—or at least their original incarnations—entered the public domain, and starting today such classic works as Ernest Hemingway's novel A Farewell to Arms, Alfred Hitchcock's film Blackmail, and the cartoon characters Popeye and Tintin also become free for use.

But at the moment there is perhaps no better testament to the importance of the public domain than Wicked.

Though it did not open in wide release until November 22, the movie musical was the year's third highest grossing film at the domestic box office, behind only a Pixar sequel and a Marvel superhero film. It has also received acclaim from both critics and audiences alike.

The film depicts an alternative backstory for the Good Witch of the North (Ariana Grande) and the Wicked Witch of the West (Cynthia Erivo), famously of The Wizard of Oz. It is an adaptation of the hugely popular Broadway musical of the same name, which was adapted from Gregory Maguire's 1995 novel Wicked: The Life and Times of the Wicked Witch of the West, which itself reimagines L. Frank Baum's Oz books, which began with the 1900 novel The Wonderful Wizard of Oz. Phew!

Baum's book has been adapted many times, most famously with MGM's 1939 film The Wizard of Oz, presented partly in black-and-white and partly in color. "From a production standpoint, it is something to marvel at, for the settings are not only exceedingly lavish, but also unusually imaginative; and the technicolor photography adds to their beauty," said a contemporaneous review in the trade journal Harrison's Reports. "Pictures of this caliber bring credit to the industry."

According to the Library of Congress, the 1939 Wizard of Oz "has been seen by more viewers than any other movie." But even though Oz is one of the most famous creative works of all time, Maguire needed nobody's permission to adapt its characters and settings for his book.

The Copyright Act of 1790, the first U.S. law of its kind, allowed authors to protect their creative works for 14 years; if they were still alive, they could then renew it for another 14 years. After that, the work would fall into the public domain and could be used freely without compensation.

Decades later, the Copyright Act of 1831 doubled the initial term to 28 years and allowed an author's spouse or children to request the extension in the event the author had died. This was the law in effect in 1900, when Baum published The Wonderful Wizard of Oz. (A later law also retroactively extended the second term to 28 years, for a maximum of 56.) Baum's widow renewed the copyright in 1928, and the book—including all its characters and settings—entered the public domain in 1956. Maguire, and anyone else, was free to draw from that novel for their own original works.

The most prominent reimagining after then and before Wicked was probably The Wiz, which told the same story as The Wizard of Oz with an all-black cast and a soundtrack featuring gospel, funk, and soul music. The Wiz premiered on Broadway in 1975 and won seven Tony Awards, including Best Musical, Best Featured Actor, Best Featured Actress, and Best Original Score. It was later adapted into a 1978 film with Diana Ross and Michael Jackson.

But The Wiz intentionally drew from Baum's novel, not the 1939 film—which remained under copyright and would require paying MGM for the privilege. In Baum's book, for example, Dorothy uses magical silver shoes to get home to Kansas; in the 1939 film, MGM changed the shoes to the iconic ruby slippers, to show off the Technicolor photography. The Wiz returned Dorothy's shoes to their original silver, as did Wicked, since red shoes are included in MGM's copyright. (There are elements of Wicked that seem to pay homage to the 1939 movie, but they at least arguably fall within the bounds of fair use.)

Congress has changed copyright law numerous times over the years—in each case, extending the amount of time something is protected. The most recent change came from the Sonny Bono Copyright Term Extension Act of 1998, which established that all works published since 1978 are under copyright protection until 70 years after the author's death; works created between 1924 and 1978 are protected for 95 years—including The Wizard of Oz, which is covered until 2035.

If the current law had been in effect when Baum released his first Oz novel, it would not have entered the public domain until 1990. This predates Maguire's book, but numerous other works, such as The Wiz, would not have existed unless the creators could afford the rights. In a recent interview, Maguire mentioned The Wiz as a progenitor to Wicked, so it's entirely possible that Maguire's work would not exist without such earlier adaptations.

American copyright law stems from Article I, Section 8 of the U.S. Constitution, which allows the government "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Over time, Congress has stretched the term limited nearly beyond recognition. L. Frank Baum clearly found a 42-year copyright term acceptable when he published The Wonderful Wizard of Oz—not to mention the sequels and Oz-themed films and comics he wrote in his lifetime. The original novel alone sold more than three million copies before entering the public domain; to make the 1939 film, producer Samuel Goldwyn paid $40,000 (more than $910,000 in current dollars) for the rights to the novel.

Two of composer George Gershwin's works also enter the public domain today: the composition An American in Paris and a 1924 recording of Rhapsody in Blue. Gershwin died in 1937, while his brother—lyricist Ira Gershwin, who helped write the song "Over the Rainbow" for The Wizard of Oz—died in 1983. Neither man had children, but their nieces and nephews took over the family catalogue. These heirs and their children now routinely adapt and rerelease their forebears' songs in new musicals (covered by new copyrights) and make millions of dollars in the process, despite having no direct connection to the original works. In 2009, more than 70 years after the Gershwins' final joint composition, the catalogue generated $8 million in annual royalties.

It's hard to imagine that George and Ira Gershwin's interests are best served by keeping their works under lock and key for decades, prevented from being adapted or repurposed without paying their distant relatives for permission. Similarly, adaptations such as The Wiz and Wicked prove the public domain's importance for fostering creativity, allowing new works based on established properties to emerge, to find success, and to inspire yet more works in the future.