I mentioned in my previous post that I was looking forward to works entering the public domain in the US as a routine annual event. This coming January 1, we’ll have the second large expiration of copyrights in the US since 1998 (the first being the most recent January 1). I’ve sometimes heard cynicism expressed that this would ever happen. Some public domain fans will tell you that Disney had been responsible for preventing valuable characters like Mickey Mouse from entering the public domain for decades, and that they’ll force more copyright extensions through before his copyright is scheduled to expire in a few years.
Personally, I think that’s a myth that makes despair too easy. While Disney has indeed been one of the companies that has lobbied for longer copyrights, they’re far from the only group that has done so, and their role is often exaggerated relative to other entertainment and publishing industry groups. Moreover, copyrights to some of their most profitable characters are already starting to expire, and so far they have neither pushed hard to extend them, nor to my knowledge seen a loss in their profitably.
I’m referring here to the A. A. Milne characters that Disney now owns (after some earlier legal battles were resolved): Winnie-the-Pooh, and his friends Christopher Robin, Piglet, Owl, and the other inhabitants of the Hundred Acre Wood. By some accounts they are as profitable as Mickey, possibly more so. And they probably will remain profitable even as their copyrights end.
Christopher Robin’s first published appearance as a character, for instance, was in the poem “Vespers” (whose most famous line is “Christopher Robin is saying his prayers”). It appeared in the January 1923 issue of Vanity Fair, and is already in the public domain in the US, as of the start of this year. Beginning in January 1924, Milne published more children’s poems featuring Christopher Robin and others in Punch, which were republished later in the year in the book When We Were Very Young. That book was an international best-seller, and along with the later book Winnie-the-Pooh, it launched Milne, his son, and his stuffed toys to worldwide fame and fortune (which, as I noted in last year’s post on Milne’s Success, was at best a mixed blessing for them.)
I find When We Were Very Young a delightful book. Like its successors, it isn’t straight-up nostalgic whimsy, but has a gently wry sensibility that parents may notice more readily than their children do. Along with “Vespers”, some of the other verses (like the ones about changing guards at Buckingham Palace, and the king who likes “a little bit of butter in my bread”) are still well-known. But the book is significant not just for the text, which is already in the public domain in some other countries with terms less than “life plus 70 years”, but for Ernest Shepard’s illustrations for the book, which will be joining the public domain in the US along with Milne’s poems. Those include recognizable likenesses not just of Christopher Robin, but of a certain bear that appears a few times, including in the upper left of the book’s cover:
The bear doesn’t yet have the name “Winnie-the-Pooh”. In this book he’s just called “Teddy Bear”, or more formally, Mr. “Edward Bear” (a name also used in his later book). His appearance, as established in this book, joins the public domain next month. The year after that, it will be joined by his “Pooh” name and his first prose story (“The Wrong Sort of Bees”, published in London’s Evening News at Christmastime 1925). The following year, most of the rest of Pooh’s Hundred Acre Wood friends will join the public domain, along with the book Winnie-the-Pooh (which includes Pooh’s bee story as its first chapter). Tigger, who bounced into print two years later in The House at Pooh Corner, will be the last of the major Milne characters to join the public domain, the same year as we can expect Mickey Mouse’s first copyrights to expire in the US.
But Disney will still have be able to profit substantially from its rights to Pooh (and Mickey). After all, the Winnie-the-Pooh cartoons and movies they made came later, and their copyrights still have decades left on them. Disney’s likenesses of Pooh and his friends also differ substantially from Shepard’s, and will therefore also be under copyright for many more years.
Moreover, much of the revenue Disney gets from these characters is not from their stories or cartoons, but from the merchandise associated with them– clothing, housewares, toys, and the like. Those can be protected by trademark, and unlike copyrights, trademarks for various kinds of goods and services do not expire as long as their owners keep using them along similar lines. (For example, while the character Peter Pan is no longer copyrighted in most countries, trademarks restrict using him to promote things like peanut butter and bus transportation to his current licensees.)
Someone who wants to reuse Christopher Robin, Pooh, and Mickey Mouse in creative works after their copyrights expire might still need to be careful about how they promote that work. But courts have made it clear in cases like Dastar v. Twentieth Century Fox that trademark cannot be used to create a de-facto perpetual copyright. I expect that over the next few years we’ll see some legal skirmishing over where to draw the line between unrestricted creativity and restricted merchandising, for Disney’s characters now entering the public domain. (We’ve seen similar conflicts over Tarzan in the past, even as many of his stories have long been in the public domain and freely available online.)
Personally, I’m content if Winnie-the-Pooh-branded bedsheets and bubble bath remain Disney’s domain, as long as readers can freely enjoy Milne’s stories and Shepard’s drawings, and writers and artists can adapt them into new stories, scenes, and objects (and promote those new works within reasonable guidelines). I’m hoping we’ll keep getting new arrivals to the public domain every year, from 1924 in January, then 1925 next year, and so on. And I’m hopeful that we will, as long as so many of us appreciate and make clear the value of a growing public domain, that those who might otherwise try to extend copyright further can’t ignore us.