6. Pennsylvania: legal discussion around the "Wizard of Oz"
a. Brief presentation of "The Wizard of Oz"
Many people still know, at least by name, "The Wizard of Oz", a title made famous following the making, in 1939, of a feature film which is very clearly related to musical theater. What is less known is that the script for this film finds its origins in a children's book written in 1900 by an author named Frank Baum. In addition, between the children's novel and the film, there were staging of the text, staging accompanied by music.
It is because the story of "The Wizard of Oz” depicts a young girl who lives in the countryside, with a fanciful character and who, as a result, has the art of befriending picturesque characters. Therefore, it has always known how to speak to both families and teachers, the two groups having obvious connections. Many musical shows exploiting this story are still produced regularly on different stages.
b. Introduction of the case
As often, when a story is original, some people may be tempted to take it on their own, produce it or reproduce it, without taking into account the financial interests of its owners and "The Wizard of Oz", a copyrighted work from its publication, like many other artistic creations, was the subject of fierce discussions.
A legal document informs us thus that in 1903, in Pennsylvania, a complaint is deposited by Mister Bloom, owner of a song entitled "Sammy" and by Mister Hamlin, owner of a musical production entitled "The Wizard of Oz" , against an actress who, during a show, performed the said song, apparently to imitate another actress.
The actress who is accused says that, in good faith, she was trying to imitate the postures and gestures of the original actress, and that she hardly used the choir of the song, and this only as a means to achieve her imitation, which normally, as the advocate who defends her points out, is not prohibited by law.
Indeed, a law prohibiting anyone from publicly performing or producing a dramatic or musical composition for which a copyright had been obtained without the owner's consent was amended in 1897, now accepting certain exceptions.
c. Importance of the nature of the artistic performance in the case
In this case, the defendant, named Fay Templeton, is in fact the manager of a musical comedy called "The Runaways", in which she imitates the peculiarities and characteristics of the performances of five actresses, including one named Lotta Faust, who sang the song "Sammy" in "The Wizard of Oz" and who is respected in the theatrical profession. Fay Templeton, on the other hand, is said to have extraordinary skills in mimicry.
It is proven that Fay Templeton announced beforehand that his performance would be an imitation of that of Lotta Faust. The court must therefore decide whether this kind of use is permitted or not, by examining the law revised in 1897. This law, however, provides for the payment of damages to anyone who infringes the copyright of a dramatic performance. or of a musical composition for which a copyright has been obtained.
The judge, having examined the lyrics and the music of the song "Sammy", declared that it is the lyrics which have an emotional content, and not the music, which cannot be qualified as dramatic. In addition, is the song, in "The Wizard of Oz", played or performed? The judge believes in any case that it is the acting of actress Lotta Faust, rather than the song "Sammy", which is the subject of the artistic performance of Fay Templeton and it seems to him indeed that the refrain of the song "Sammy" is just a source of inspiration for this work.
d. The decision of the judge
However, considers the judge, a parody does not infringe the copyright of the parodied work only because a few lines of an original text are reproduced. Without a doubt, the mimicry is obvious. If it appeared that the imitation was only a simple attempt to infringe on the owner's copyright, the defendant should be prohibited from doing so. However, it is clear that in this case the imitation is in good faith and that the repetition of the refrain is an incident due solely to the staging.
Consequently, the judge considers that the representation does not infringe the letter or the spirit of the act of 1897. However, as it is, as the legal document which is our source mentions it by way of conclusion, only guided by the affidavits of both parties, his judgment is not final. Nevertheless, in light of what the judge knows at the time, he decides to reject the complainants' request.
e. Several observations at the end of this cycle of videos
It is hardly desirable, after examining only a few cases of copyright infringement complaints in the sheet music industry in the United States between the late nineteenth and early twentieth centuries, to draw even a shadow of a definitive conclusion on this subject, especially because we are not specialists in law.
However, in this specific context, and after reading a few other cases that we did not share, because they were quite similar to the ones we mentioned in this cycle of videos, we were able to notice some common characteristics to these cases.
First of all, with regard to the publication of sheet music books and compilations, it should be noted that, in the United States, during the nineteenth century, for the most part, nothing has changed compared to what had happened in Europe since the birth of sheet music printing during the sixteenth century. In other words, the unauthorized reproduction of isolated compositions and books is always sanctioned. However, some procedural finesse have been added over time. Thus, it is no longer sufficient for the holder of the rights of a composition to prove that he has acquired these rights, but he must also have followed a strict legal deposit procedure with the American Congress and its Library, the Library of Congress.
Another point related to sheet music concerns the importance taken by the arrangers and the orchestrators, in the context of creations which, when they are produced in New York, already belong to the mythical universe of Broadway. These arrangers have a key role, and whether or not they contact the Congress and the Library of Congress to register their arrangements can significantly influence a verdict.
A third factor comes into play, concerning whether a sheet music was published before the production of a show or not, and, if so, in which country. In addition to these major points, there are artistic and literary considerations concerning the dramatic nature or not of an original work which would have been prejudiced and even, in one case, a debate relating to the moral character of a work. This is how we discovered that in the nineteenth century, in the United States, lyrics of songs considered to be vulgar or obscene could not benefit from a copyright and, consequently, the music which they accompanied no more.