Winnie-the-Pooh’s Journey into the Public Domain
In January 2022, after nearly one hundred years of copyright protection, Winnie-the-Pooh entered the public domain. This blog post will discuss copyright law’s grounding in the Constitution, the story of Winnie-the-Pooh’s copyright, and how the changing landscape of U.S. copyright law has affected this beloved story and the characters contained within it.
Congress’ Power to Enact Federal Copyright Law
Congress’ power to regulate federal copyright law derives from the Constitution. Specifically, Article 1, Section 8, Clause 8 (the “Intellectual Property” Clause) grants Congress the power “[t]o 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.” While this clause grants Congress general powers to govern certain aspects of intellectual property law, it does not actually supply any laws on its own. Instead, acting pursuant to this constitutional authority, Congress can write and enact federal copyright laws.
Congress enacted its first set of federal copyright laws in the late 1700’s. The laws were relatively limited in scope, protecting “books, maps, and charts for only fourteen years with a renewal period of another fourteen years.” Modern copyright laws have since become more expansive, protecting a wider variety of works for longer periods of time.
The copyright laws relevant to Winnie-the-Pooh are: (1) the 1909 Copyright Act, (2) the 1976 Copyright Act, and (3) the 1998 Copyright Term Extension Act. Under all three Acts, an original work of authorship gains copyright protection the moment it is published. The copyright protection immediately grants the author exclusive rights to reproduce, distribute, perform, and display the work. Further, all three Acts permit authors to transfer these rights to third parties, which is often exercised by authors in exchange for royalty income. While these three copyright Acts are very similar in substance, their primary differences relate to the amount of time that authors enjoy these protections.
- The 1909 Act
Under this Act, works could receive protection for up to 56 years. Upon publication, a work was initially protected for 28 years, and if the copyright was renewed in its 28th year, an additional protection term of 28 years was granted.
- The 1976 Act
The 1976 Copyright Act made one significant change to the renewal term of works created before 1978; it gave all current copyrights an additional 20 years of protection, for a total of 76 years. Additionally, this Act gave authors an opportunity to terminate any licensing agreements previously made under the 1909 Act.
- The 1998 Copyright Term Extension Act
The 1998 Copyright Term Extension Act added yet another 20 years to the renewal period of previously copyrighted works, which automatically applied to works “subsisting in their second term between December 31, 1976, and December 31, 1977,” and extended the maximum length of copyright protection to 95 years.
In 1926, Alan Alexander Milne wrote Winnie-the-Pooh, the first of several collections of short stories about a boy named Christopher Robin, his stuffed bear, Winnie-the-Pooh, and their friends in the Hundred Acre Wood. Since the book was published during the 1909 Copyright Act regime, it automatically gained copyright protection upon publication through 1954, and received an additional 28 years of protection because the copyright was renewed. The 1976 Copyright Act further extended Winnie-the-Pooh’s protection through 2001, and the 1998 Copyright Term Extension Act tacked an additional 20 years of subsequent protection. Since the 1998 Act was the final extension of copyright protection, the book’s copyright expired at the end of 2021, causing Winnie-the-Pooh and the characters contained within it to enter the public domain in January 2022.
While these copyright extensions are important, the more interesting aspect of Winnie-the-Pooh’s journey into the public domain pertains to copyright transferability. In 1930, Milne first took advantage of his ability to transfer his copyright protections by signing an agreement with Stephen Slesinger, a “television-film producer, creator of comic-book characters, and pioneer in the licensing of characters for children.” Milne granted Slesinger “exclusive merchandising and other rights on the Pooh works in the United States and Canada.” This license lasted for the entirety of Winnie-the-Pooh’s copyright, which at the time extended through 1982. Slesinger subsequently granted these rights to Walt Disney Productions in 1961, and Milne’s estate also entered into a separate agreement with Disney around the same time. Milne’s agreement with Disney gave Disney nearly all of Pooh’s remaining copyright protections. This left Disney with nearly unrestricted access to use and develop the Winnie-the-Pooh characters into the popular cartoon versions.
The 1976 Copyright Act gave Milne’s estate an opportunity to reevaluate its agreements with Slesinger and Disney, as the Act allowed an author (or his heirs) to terminate a licensing agreement made under the 1909 Act. However, instead of terminating the licensing agreements, Milne’s estate opted to renegotiate its agreement with Disney in 1983 to receive a larger portion of royalties. Other than the royalty payment provisions, the new agreement had nearly identical terms to the old agreement, so Disney retained its nearly exclusive and unrestricted access to Winnie-the-Pooh. The licensing agreement was set to expire when the work entered the public domain, which at the time was less than 20 years away.
However, Milne’s estate in 1983 was unaware that the 1998 Copyright Extension Act would later grant Winnie-the-Pooh an additional 20 years of protection, further extending the duration of the licensing agreement as well as Disney’s exclusive rights to the work. Milne’s estate attempted to terminate the licensing agreement after the 1998 Act took effect, but the language of the 1998 Act only allowed for the termination of licensing agreements made before 1978. Because Disney and Milne executed a new contract in 1983 after renegotiating its terms, Milne’s estate was unable to terminate the agreement and Disney retained nearly exclusive rights to Winnie-the-Pooh until the book entered the public domain in 2022.
What Does This Mean for Pooh?
Now that Milne’s 1926 book has entered the public domain, “the plot, dialogue, and settings in that book are open for future creators,” along with the “appearance and traits” of any characters appearing in that book. This includes Piglet, Eeyore, Rabbit, Kanga, Roo, Owl, and Christopher Robin. Tigger, on the other hand, did not appear until 1928 in The House at Pooh Corner, so he does not enter the public domain until 2024.
While entering the public domain allows “anyone [to] adapt the 1926 book into a play, musical, film, or write a prequel or sequel,” the public does not have free reign to use many of Pooh’s modern characteristics. Any adaptations that Disney made to the character under the licensing agreements, such as giving him his signature red shirt, are still protected as derivative works. As such, Disney can still prevent the public from using its modified, well-known versions of Pooh.
The horror film, Blood and Honey, serves as an example of how creators can take advantage of Pooh’s entry into the public domain. This film, set to be released in 2023, “follows Pooh and Piglet as they go on a rampage after Christopher Robin abandons them for college.” While this film uses characters like Pooh and Piglet and refers to Milne’s original settings, the film refrains from using Disney’s red-shirted, cartoon-like version of Pooh.
Other artists have used their depictions of Pooh to explain and poke fun at copyright’s boundaries. For example, artist Lukey McGarry recently created a comic strip where Pooh refers to Disney’s copyright and jokingly explains to Christopher Robin that, “as long as I don’t put a little red shirt on, I can do as I like.”
How Will Disney Respond?
Though both the horror film and comic strip appear to be staying within the permissible boundaries of public domain, only time will tell if these works and others like them can escape intellectual property challenges brought by Disney. On one hand, Disney might actually benefit from the widespread renewed interest in Milne’s characters and, as a result, may refrain from challenging public use of Pooh. However, given Disney’s longstanding monopoly on Milne’s works, Disney may have trouble relinquishing its control over the characters. As a result, I presume that Disney’s last attempt to retain control over Pooh and his friends is yet to come.
Elisabeth Bruckner is a second-year law student at Northwestern Pritzker School of Law.