Oh, Bother!: Winnie the Pooh, (the Public Domain), and Gore Too!

When news broke that beloved “Tubby little cubby all stuffed with fluff” Winnie the Pooh was destined to enter the public domain on January

Oh, Bother!: Winnie the Pooh, (the Public Domain), and Gore Too!

When news broke that beloved “Tubby little cubby all stuffed with fluff” Winnie the Pooh was destined to enter the public domain on January 1st, 2022, 95 years after A.A. Milne’s beloved children’s classic first hit the shelves and the feels of generations, it was inevitable that people would create their own spins on the cast of the Hundred-Acre Wood.

But seeing many people’s favorite childhood friend/philosopher morph into a murderous caricature of himself has made a lot of people extremely unhappy, asking how the law could possibly allow this. Let’s take a closer look at the long-suffering, much-maligned bear and how his entrée into the public domain can impact not only our favorite hunny-guzzling fuzzball, but what it presages for an entire era of beloved characters, stories, and IP.

Background

Before we get too deep into the specifics, it’s important to take a deep dive into how IP laws work and what they do and don’t cover. Like everything else, the rights to intellectual property don’t and were never intended to exist forever. In the original Constitution, creative rights to IP only endured for 28 years, to cover the author’s lifetime plus perhaps a few years for any surviving heirs to the author’s estate to benefit from the work. Through the years, this has evolved from 28 years to the life of the original author (hereinafter LA), to LA plus 50 years, to the present LA+75 or 95 years (depending on which comes first), largely due to the Sonny Bono-backed (and Disney-supported) amendment to existing copyright law, which I’ve discussed previously.

Despite some particularly odd miscarriages, such as the case of a photographer who released her own work to the public domain and was later denied the right to use it thanks to Getty Images, for the most part, this system, and the body of law that backs it, has worked well. Works covered under copyright pass into public domain as of 1 January of the year after the copyright expires, so if the copyright technically expired on January 2nd, 2023, it would not actually enter public domain until New Year’s Day 2024.

With this in mind, let’s turn to The Hundred-Acre Wood’s most famous resident.

Canadian author A.A. Milne took the inspiration for his best-known creation from real life: namely, his son, the late Christopher Robin (yes, seriously), and his adventures and antics playing with his mother and the menagerie of stuffed animals that would become synonymous with both Pooh and, in later days, varying forms and degrees of mental illness. Unfortunately, Christopher Robin Milne quickly soured on the unsought fame he received by association with his father’s favorite creations, and only in later life came to a sort of begrudging peace with the whole thing. In fact, Christopher Robin Milne bequeathed the original stuffed animals that inspired Pooh, Kanga, Eeyore, and Tigger to the Children’s Branch of the New York Public Library, where they live to this day in a specially climate-controlled box.

When a work enters public domain, it is essentially community property. The specific works derived from the original work then become original works in their own right, which are entitled to all the rights and responsibilities that stem from US IP law. For just a few well-known examples, take the movies Clueless (reimagined from Emma by Jane Austen); Ten Things I Hate About You (based on The Taming of the Shrew); or, since I’m on the subject and perhaps the most famous, the quasimusical William Shakespeare’s Romeo + Juliet from Baz Luhrmann. Given this, provided the work in question doesn’t intrude on other interpretations of the work in public domain which may result in an infringement action, the producer/creator of such work largely has a free hand to do as they wish.

Enter Pooh (and Piglet, too)!

It would be difficult if not impossible to conceive of a world in which generationally favorite characters do not find new life and new inspiration. For example, in the original Winnie the Pooh stories, Winnie was portrayed with no clothes at all. However, in the Disney version, Pooh wears a ubiquitous red T-shirt which has become a hallmark of the character, along with the signature “Oh, bother!” often uttered by the perennially perplexed plushie or his (or her, if you’re paying close attention to the source material) love of HUNNY [sic].

This created an interesting problem for film auteur Rhys Frake-Waterfield, who publicly and gleefully stated his entire intent was to “ruin people’s childhoods” by turning the survivors of a terrible blizzard in the Hundred-Acre Wood into terrifying, cannibalistic, blood-crazed, twisted-mirror versions of themselves. While he could not use many of Pooh’s signature-by-way-of-the-House-of-Mouse identifying features and catchphrases (see HUNNY above), he could and did place his own spin on the beloved children’s icon turned sadistic villain—and his best friend and later partner in crime, Piglet, who is now an anthropomorphic tusked boar (not to be confused with a boor or a bore, although either definition could fairly apply here too, depending on one’s inclinations).

To avoid the obvious problems arising from the fact that other versions of Pooh, namely those of Disney, are still under copyright, he basically made Pooh a silent killer a la Michael Myers in the Halloween franchise, wearing a red flannel shirt and hunter’s vest in conscious juxtaposition to the cherry-red tee the tubby little cubby sported in more innocent incarnations. While Disney could arguably object to the use of a red shirt at all in this context, it would be like ice-skating uphill to convince a judge to strike down the interpretations.

Given all this, Rhys Frake-Waterfield would appear to be in the clear. He is already on record as having his sights set on a number of other popular characters, such as Peter Pan and Bambi, which are set to enter the public domain in the next several years, as part of a twisted cinematic universe. And, barring massive changes in copyright law in the next two or three years, there will be absolutely nothing to stop him.

The Bottom Line

Whether you love or hate what Waterfield’s vision has made of everyone’s favorite bear in the past year or so, there’s no escaping the fact that legally, as long as he stays off Disney’s lawn, so to speak, while he creates his sinister versions of beloved children’s characters, there is little or nothing barring him or anyone else from doing so. Even A.A. Milne’s son and inspiration for the Winnie the Pooh stories is deceased, having passed away in 1996 at age 75. This means it is unlikely the Milne estate could or would be able to mount an effective legal challenge even if they were so inclined.

So, Winnie the Pooh seeking blood rather than hunny?

Sure. From a legal standpoint, why not?

Whether it should be done is an entirely different matter that I’ll leave you, gentle reader, to decide.

About the Author

Oh, Bother!: Winnie the Pooh, (the Public Domain), and Gore Too! 6

John Rizvi is a Registered and Board Certified Patent Attorney, Adjunct Professor of Intellectual Property Law, best-selling author, and featured speaker on topics of interest to inventors and entrepreneurs (including TEDx).

His books include “Escaping the Gray” and “Think and Grow Rich for Inventors” and have won critical acclaim including an endorsement from Kevin Harrington, one of the original sharks on the hit TV show – Shark Tank, responsible for the successful launch of over 500 products resulting in more than $5 billion in sales worldwide. You can learn more about Professor Rizvi his patent law practice at www.ThePatentProfessor.com

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