Copyright

So now that the book “Winnie the Pooh” has entered the public domain, what is next for our beloved “bear of very little brain”?

First off, let’s take a look at what didn’t happen. Copyrights did not get extended again. Typical of the cynical sniping about copyright terms is this, which came out right after Pooh went into the public domain:

“Instead, it’s a pointer to the sheer absurdity of American copyright law, which long ago came under the thumb of the entertainment industry and distant heirs of artists determined to preserve what is essentially a windfall.

Copyright terms have been consistently extended not in the interests of the works’ creators, but for the benefit of corporate behemoths such as the Walt Disney Co. and the families of George Gershwin and Oscar Hammerstein II…”¹

Well, as I pointed out in my previous blog post, Winnie the Pooh is just about as valuable a character as Mickey Mouse. So if Congress is “under the thumb of the entertainment industry,” why didn’t Disney waltz into Washington, toss around a few Disney dollars and walk out with another 20 year extension?

Because, as I have pointed out previously, the whole “Mickey Mouse Protection Act” is a catchy phrase, and is a nice story. But in the end, it’s just a story.²

One more time:

“A key factor in the SBCTEA’s passage was a 1993 European Union (EU) directive instructing EU members to establish a baseline copyright term of life plus 70 years and to deny this longer term to the works of any non-EU country whose laws did not secure the same extended term. By extending the baseline United States copyright term, Congress sought to ensure that American authors would receive the same copyright protection in Europe as their European counterparts. While it may satisfy the cynical nature of anti-copyright activists to paint long copyright terms as a sell out to Hollywood, the real driving force for longer copyright terms comes from Europe, not Hollywood, and the need for the United States to protect its copyrights abroad requires the adherence to treaties that mandate long copyright terms.”³

The SBCTEA achieved that goal of putting American creative works (which are the most financially lucrative in the world) on an equal footing with those created in Europe. Nothing in Europe has changed since that time. The rationale for the SBCTEA having been met, there is no need for a further extension of US copyrights.

Winnie the Pooh went into the public domain, as scheduled.

And in two years, so will “Steamboat Willie,” the first appearance of Mickey Mouse.

There will be no legislation introduced to further extend copyrights.

You read it here first.

Now, back to our bear of very little brain. What can be done moving forward?

The easiest answer is that anyone can now make copies of the “Winnie the Pooh” book and sell them. New books featuring Winnie the Pooh and friends can be written and published.

New Winnie the Pooh movies? That’s a little trickier. Because Winnie the Pooh is also a trademark.

The Pooh that passed into the public domain was a “literary work” under the definition of the Copyright Act. It was not a “motion picture” as defined by the Copyright Act. All of the Winnie the Pooh motion Pictures were created by the Walt Disney Company and first published on June 24, 1968.

Based upon that use, Disney has obtained eight Federal Trademark registrations for “Winnie the Pooh” including the category of “motion picture films in the nature of adventure and comedy.”⁴ Disney has additional registrations on “Winnie the Pooh” for a variety of products, but the most important one is the registration that covers

“Audio and visual recordings featuring live action and animated entertainment for children, motion picture and television shows featuring live action and animated entertainment for children, video and computer games and software…”⁵

Just to be sure, Disney also has trademark registrations for “Piglet”⁶ and “Eeyore”⁷ both encompassing television and motion picture products. A search for just “Pooh” turned up no Disney registrations. Searches for “Kanga,” “Roo” and the “Hundred Acre Wood” turned up too many results to be effectively parsed.

The interesting thing about these registrations is that all of them are “standard character mark” registrations. They do not claim any trademark rights over the characters physical appearance. So what is protected is just the words, not any image.

This makes sense since the initial depictions of Pooh and friends was created by Ernest Shepard, and have passed into the public domain as well. Disney’s visual representations, are therefore derivative works based on the original drawings. Remember that a trademark protects words and phrases that in the minds of the public connect to the source of the goods or services. Disney was not the source of the original Pooh books.

Yet, Disney’s trademark registration does encompass “books, namely a series of fiction books.”⁸ So the question becomes, can you call the bear character “Winnie the Pooh” in your new book? I would think based upon the first Pooh book passing into the public domain that you could. Could you use “Winnie the Pooh” in the title of the book? That is less certain.

This certainly puts Disney in a sticky situation. They undoubtedly have some intellectual property rights here, yet over a character that they did not create, unlike Mickey Mouse. To over-enforce here would invite a public backlash. The real crown jewels here are the Pooh movies and merchandise based on Pooh’s modern appearance, which Disney unquestionably controls.

So my guess here (and this is just a guess) is that Disney will play hands off on new Pooh books. New Pooh movies might be moved against more aggressively, because the only Pooh movies in existence were created by Disney.

So what does this mean going forward? One of the great benefits constantly touted by the anti –copyright folks, that there will be this plethora of new Pooh book which will be published.

As one cartoonist discovered when he put on social media a satirical cartoon making fun of Pooh’s new public domain status, and tweaking Disney in the process:

“’I didn’t think it was going to blow up like it did.’ On Twitter alone, the illustration received nearly 40,000 likes. The artist realized his Pooh toon could bring some cash flow. “Had I anticipated there being any demand, I would’ve probably had prints done in advance.’ What the post did highlight is now that the mid-1920s iteration of Pooh Bear is available to anyone free of charge, he and pal Christopher Robin’s woods are packed with potential money pots.”

Yes, anyone can write a new Winnie the Pooh book.

The problem is, anyone can write a new Winnie the Pooh book.

The real question is will they be any good? Or will they be a stack of poorly written drivel, created by literary hacks, designed to cash in on one of the world’s most popular characters?

Not to mention a character that they had no hand in creating or popularizing.

And I don’t even want to contemplate the “porno” version of Winnie the Pooh.