By Shannan Welsh (Paralegal), Madeline Wyre (Lawyer) and David Robbins (Principal Solicitor)
Public Domain Day is arguably one of the most exciting days on the calendar for intellectual property lawyers and creatives alike. Typically (and subject to the copyright laws of each country), 1 January each year is the day when expired copyright works legally transition into the public domain.
Public Domain Day 2022 was particularly exciting in the US, as A.A. Milne’s original 1926 ‘Winnie-the-Pooh’ story was one of the works which entered the public domain. However, despite the considerable excitement this caused, it unfortunately does not mean that the lovable yellow bear dressed in his signature red t-shirt is now free for everybody to exploit into their own stories, films or merchandise. This is because copyright has only expired for A.A. Milne’s original story which features a ‘Winnie-the-Pooh’ character markedly different to the modern ‘Winnie the Pooh’ we are used to seeing today – and that portrait of Winnie is owned by Disney.
Disney’s rights in Winnie
Disney acquired the rights to Winnie-the-Pooh in 1961, dropping the hyphen and releasing the animation classic ‘Winnie the Pooh and the Honey Tree’ in 1966, where Winnie appeared for the first time in his modern form. Each of Disney’s Winnie the Pooh works and adaptations are still protected under US copyright. Therefore, people cannot make works resembling Disney’s Winnie the Pooh without infringing copyright.
Pooh as you’ve never seen him before
It didn’t take long for creatives to consider how to exploit the end of copyright in A.A. Milne’s original creation. A great example is celebrity Ryan Reynold’s advertisement for US telecommunications company Mint Mobile. Released promptly after Public Domain Day 2022, the ad features a parody version of the original Winnie-the-Pooh story called ‘Winnie-the-Screwed’, where Winnie discovers he has overpaid for his phone bill. The story in the ad is reminiscent of the style of Milne’s original story, including line drawings of the shirtless bear.
A more controversial derivation is the recent poster and trailer reveal for a new horror film ‘Winnie-the-Pooh: Blood and Honey’. Aside from being utterly terrifying and ruining sacred childhood memories, a larger concern is the film’s potential to raise copyright action from Disney. Whilst the film title was careful to use the original hyphenated ‘Winnie-the-Pooh’, it features a ‘killer Winnie’ wearing a red shirt. It is this use of the red shirt which may give Disney grounds to make a copyright infringement claim, given that Disney’s shirt-wearing Winnie the Pooh is clearly distinguishable from Milne’s original shirtless yellow bear.
Will Disney enforce its rights?
It will be interesting to see if and how Disney responds to the film and to other creatives who start making Winnie-the-Pooh derivatives. The action that Disney decides to take could be indicative of what it will do when copyright for its iconic animated short film Steamboat Willie finally expires and enters the public domain in 2024…or will it?
Created in 1928, Steamboat Willie features the original Mickey Mouse and was due to have its copyright protection expire in 1984, with US copyright law at the time providing a 56-year protection period (inclusive of a 28-year renewal). However, before its expiry in 1984 Disney successfully lobbied to extend US copyright protection to ‘life of the author plus 50 years’, or 75 years for corporate authors. This increased Steamboat Willie’s (and Mickey’s) period of copyright protection to 2003. However, once again before its expiry, US Copyright rules were changed in 1998 after further lobbying from Disney and musician-turned-politician Sonny Bono to ‘life of the author plus 70 years’, and 95 years from the year of first publication for corporate works. This means that Steamboat Willie’s copyright is now due to expire in 2023 and (finally) enter the public domain in 2024.
The term of copyright in Australia
In Australia, copyright protection was previously for a period of ‘life of the author plus 50 years’. However, the Copyright Act 1968 (Cth) was amended in 2005 due to the Australia-US Free Trade Agreement to match the extended US protection period of ‘life of the author plus 70 years’. The implication of this amendment is that Public Domain Day won’t be very exciting in Australia until at least 2026, as works which were still protected by copyright on 1 January 2005 or works created on or after that date had the extended period of protection applied to them.
Time will tell whether the impact of Winnie-the-Pooh entering the public domain will fuel Disney to continue lobbying to extend the period of copyright protection for Steamboat Willie and Mickey Mouse, or if they will finally let this work enter the public domain for all creatives to use.
As more ‘high profile’ characters and works begin to come out of copyright protection and enter the public domain, people who wish to take advantage of these works, whether in Australia or otherwise, must ensure that they only create derivatives of those particular works and take great care not to infringe copyright which may remain in place over later iterations.
If you have any questions in relation to copyright law, or intellectual property law generally, please contact a member of our Intellectual Property team.
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