Domain editor

How “public” is the public domain? Winnie-the-Pooh illustrates the limits of copyright in public domain works

“The buzzwords ‘public domain’ can create a false sense of security. Often the characters carry through many stories written by one author. When the first story enters the public domain, it does not mean that all uses of that character are free of copyright protection.

You may have heard that on January 1, 2022, Winnie-the-Pooh and the other Hundred Acre Wood characters are now in the public domain. But did you know that not all of Christopher Robin’s friends are treated the same under copyright law? The characters have several authors, including AA Milne who first published Winnie the Pooh in 1926, and The Walt Disney Company, which brought the stories to the screen. Milne’s characters from his 1926 books entered the public domain earlier this year, but Disney’s iteration remains copyrighted for the time being.

Public domain issues

Before a copyrighted work enters the public domain, the author of an “original work of authorship” has the exclusive right to reproduce, distribute, create derivative works from, publicly perform or display this work. If others want to use the work, they must seek permission from the author. Copyright protection in the United States lasts for the lifetime of the author plus 70 years after the author’s death. Since copyright protection extends beyond the author’s lifetime, the author’s estate obtains exclusive rights upon the author’s death and can then enforce those rights against those who use the work without permission.

When popular works, like a book, enter the public domain, we tend to see an increase in the use of characters and stories from those popular works in new works. Take Sherlock Holmes for example. In the early 2000s we saw an explosion of TV shows and films using the detective and his faithful friend Dr Watson after the early stories of Sir Arthur Conan Doyle entered the public domain in the UK. United. However, since then we have seen several legal challenges related to Sherlock Holmes copyright protections.

Buzzwords “public domain” can create a false sense of security. Often the characters carry through many stories written by one author. When the first story enters the public domain, it does not mean that all uses of that character are without copyright protection. We see this happen when an author’s descendants and their estates often enforce the author’s rights (whether existing or not) by demanding licensing fees and taking action to block the distribution of the “infringing work”. if license fees are not paid. For example, the BBC and CBS still paid licensing fees to the Conan Doyle domain to use the characters and stories in their television shows despite the fact that the main body of Doyle’s stories were already in the public domain. However, not everyone was willing to pay the license fee to the Conan Doyle estate.

In 2013, the Conan Doyle Estate told Sherlock Holmes story editor and annotator Leslie Klinger that he had to pay a licensing fee for the right to use the Sherlock Holmes stories and character in a collection. of stories called With Sherlock Holmes. When Klinger refused, the estate contacted the publisher and said the estate would convince major retailers and distributors not to sell the book. Klinger sued the estate, arguing that the characters and stories from the Sherlock Holmes stories are in the public domain. The U.S. District Court for the Northern District of Illinois ruled in favor of Klinger, but cautioned him against using character and story elements introduced in the short stories Doyle published after 1923, as these were still copyrighted. The use of public domain works does not exclude copyright issues.

The unprotected bear cub

As we saw with Sherlock Holmes in the early 2000s and Gatsby the magnificent in 2021, we can expect to see works using Winnie-the-Pooh and supporting characters in new ways. Even though we’re only weeks into the new year, Winnie-the-Pooh has already been featured in new works, such as Ryan Reynolds and Luke McGarry’s new Mint Mobile ad. comic. Reynolds and McGarry have so far avoided legal challenges with their uses.

To give some background, Milne’s 1926 book is in the public domain, but changes to Winnie-the-Pooh, the character, from the original 1926 book are still copyrighted. Milne’s Winnie-the-Pooh didn’t wear a red shirt; another author gave Pooh his shirt and Disney acquired the rights to this depiction in 1961 and continues to hold the rights to show the character in a little red shirt today. Additionally, Milne spelled Winnie-the-Pooh with hyphens; Disney removed them.

So which teddy bear did Reynolds and McGarry use? Reynolds and his media team carefully chose to depict Winnie-the-Pooh and the other characters in the style of illustration from the original book and used hyphens in the character’s name. While Luke McGarry’s comic depicts Winnie-the-Pooh in a different style from the original illustrations, he always avoided drawing a shirt on Winnie-the-Pooh and left the hyphens in the character’s name.

Like Doyle’s still copyrighted short stories, elements of AA Milne’s second book, The Pooh Corner House, are not yet in the public domain. Tigger was first introduced in this second book, and is therefore still copyrighted and cannot be used without an appropriate license.

Avoid infringement claims

Copyright issues always lurk when content enters the public domain. Care must be taken to identify what has entered the public domain (and therefore is free to use) and what remains protected by copyright law. Although disclaimers are not mandatory, labeling works indicating that the work is not sponsored or related to the larger entity can preemptively clear up consumer confusion and avoid claims. for copyright infringement.

Image Source: Depot Photos
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Photo by Christine Xiao