Winnie-the-Pooh and Disney, Too: What Public Domain Means for a Silly Old Bear
When a work has entered the public domain, what does that mean for creatives who want to use that work as inspiration for something new? Perhaps more importantly, what if the work had previously been licensed for exclusive use by another party, and serves as the foundation for a billion-dollar media franchise? This article seeks to explain the nature of the public domain in the United States, including how that applies to a beloved honey-loving teddy bear.
Public Domain
Under United States copyright law, “public domain” refers to the body of creative work to which there are no exclusive intellectual property rights. Anyone is free to repurpose, reproduce, distribute, and disseminate the work without payment or permission from the previous owners. Stories like Lewis Carroll’s Alice’s Adventures in Wonderland and Through the Looking-Glass serve as good examples: they were published in 1865 and 1871 respectively, and collectively serve as the source of numerous adaptations and new derivative works without need to secure a license from any rightsholders. Such derivative works include Walt Disney’s 1951 animated film Alice in Wonderland and Rogue Entertainment’s 2000 psychological action-adventure game American McGee’s Alice.
Most frequently a new work will enter the public domain when its copyright naturally expires. Copyright laws have changed over the decades, and with them the durations of copyright protections. Under the current framework if a work was published before 1978 it will have, at most, 95 years of copyright coverage before it enters the public domain. Therefore, as of January 1, 2022, all works published before 1927 are in the public domain.
A recent example of a famous work falling into the public domain is A.A. Milne’s 1926 short story compilation Winnie-the-Pooh, which entered the public domain this year. The book introduced the characters of Winnie-the-Pooh, Christopher Robin, Piglet, Eeyore, Owl, Rabbit, Kanga, and Roo. The stories and characters from this work specifically are now fair game for use, either as direct republication or as the basis for new derivative works without license. Notably, the character of Tigger was not introduced until Milne’s 1928 collection The House at Pooh Corner, and so is not yet in the public domain.
Walt Disney and Pooh
The Walt Disney Company first received licensing rights to the Winnie-the-Pooh stories, characters, and related trademarks in 1961. They released their first animated featurette based on these stories, Winnie the Pooh and the Honey Tree, in 1966. In this featurette, the character of Winnie-the-Pooh is depicted as a pudgy yellow bear wearing a red shirt, quite different from the shirtless teddy bear depicted in Milne’s book. This featurette also introduced the character of Gopher, which is not based on any of Milne’s prior work and is an entirely original Disney creation. Since that release the “silly old bear” has become a staple character for Disney’s various business ventures, from animated features and video games to parks and merchandising.
Just because an original work is now in the public domain does not mean that its various interpretations and adaptations have likewise suddenly become available for use. While Disney no longer has exclusive control over the characters, they still very much own the copyrights to their specific depictions of those characters, along with numerous trademarks for character names (e.g., WINNIE THE POOH, POOH, EEYORE, etc.). The rotund yellow bear with the red shirt is still the protected property of the Walt Disney Company, and Disney has demonstrated a willingness to aggressively protect those rights. This defensiveness should come as little surprise, as total retail sales of Disney’s Pooh merchandise since 1997 exceeds $80 billion. As such, anyone who wishes to use Winnie-the-Pooh should do so with caution lest they find themselves stuck in a very unpleasant legal rabbit hole.
What Should You Do If You Want To Use A Public Domain Work?
Undoubtedly, when any beloved intellectual property like Winnie-the-Pooh enters the public domain, there is broad interest in utilizing that IP for new creative expressions. Indeed, there was a spike in interest on social media and in the news in January 2022 when the list of works newly-added to the public domain was compiled, and a lot of that attention was focused on Winnie-the-Pooh.
Thus, if you are seeking to depict the public domain characters from a public domain work, some general advice would be to:
Base any interpretations entirely on the original publications and artwork and not on any Disney or other third-party depictions. For example, if you are adapting Winnie-the-Pooh, do not depict Pooh as a yellow bear in a red shirt, as that could give rise to claims of both copyright and trademark infringement. If you are adapting Alice’s Adventures in Wonderland, do not include the Talking Doorknob or references to an “Unbirthday Party,” as they are original Disney creations for their film adaptation.
If you are using story elements from a multi-volume body of work, be sure that elements you use are currently in the public domain. For example, if you are adapting Milne’s work, be certain the elements you use originate from 1926’s Winnie-the-Pooh and not 1928’s The House at Pooh Corner, as the latter collection will not enter the public domain until January 1, 2024.
Similarly, to story elements, be cautious of character uses from multi-volume works. For example, do not use any depictions of the characters Tigger or Gopher, as neither of those are in the public domain and the latter is in fact entirely owned by Disney. Tigger will enter the public domain along with The House at Pooh Corner, but Gopher will remain Disney’s sole property for a long time to come.
Always conduct trademark searches, including for common law uses, to confirm that the titles or marks you want to use are not confusingly similar to a mark currently used by someone else. For example, even though the character of Winnie-the-Pooh may now be in the public domain, use of that name in a title or a similar use may be confusingly similar to Disney’s trademarked WINNIE THE POOH, which is still protected.
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