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    Winnie the Pooh’s Copyright (and Other) Wars

    • 18.12.2023
    • By Hugh Stephens Blog
    Hugh Stephens Blog

    I am sure you are all familiar with the books by the British writer A.A. Milne about Winnie the Pooh-bear and his friends, Eyeore, Piglet, Kanga, Roo, Rabbit, Owl, Tigger, and their adventures with Christopher Robin, who was Milne’s son. You have probably read the stories to your own children or had them read to you when you were young or, if not, you have likely watched a Disney film on Winnie the Pooh at some time. Books about Winnie and his friends are likely to be in Christmas stockings again this year.

    Milne wrote Winnie-the-Pooh in 1926 followed by two sequels, Now We are Six, a year later, and The House at Pooh Corner in 1928. The books have enjoyed enormous popularity over the years and have been translated into over 50 languages. The Latin translation of Winnie the Pooh by Alexander Lenard (“Winnie Ille Pu”) is the first foreign language book to have been on the NYT Best Seller list and, perhaps needless to say, the only one in Latin. Given the interest in Milne’s works, early in 2024 we are going to be treated to breathless announcements by advocates of the public domain, such as the Center for the Study of the Public Domain at Duke Law School celebrating the fact that the third of Milne’s Pooh books, The House at Pooh Corner, where the character Tigger was first introduced, will be entering the public domain in the US. (It has already been in the public domain in Canada since 2007 but will remain under copyright in the UK until 2026). As I wrote when the original Pooh work entered the US public domain almost two years ago (Winnie the Pooh, the Public Domain, and Winnie’s Canadian Connection), this predictable but essentially meaningless crowing over books or works entering the public domain feeds the false narrative that a book falling under copyright protection is somehow “locked up” and unavailable to the public.

    Another recent example of this fabricated frenzy are reports now appearing about the expiry in the US of the copyright on Disney’s first Mickey Mouse film, Steamboat Willie, which first appeared in 1928. (Even though this film has probably been in the public domain in Canada for a number of years, although with limited circulation lest it be inadvertently distributed in the US, the CBC could not stop itself from tooting Willie’s imminent release from copyright purgatory by running the film’s steamwhistle soundtrack on the evening news last week). With the expiry of the US copyright on Willie, that particular film will be free to use and broadcast without licence, although its value is limited as all more recent Disney versions of Mickey remain under copyright, the Steamboat Willie character is trademarked so knock-offs would still be an intellectual property infringement and, moreover, Disney made the Steamboat Willie film freely available on Youtube years ago.

    But back to Winnie—and Disney. While all of Milne’s Pooh books will be in the public domain in both the US and UK quite soon, none of the Disney adaptations will lose their copyright protection for quite some time. Disney made its first Pooh film in 1966 (Winnie the Pooh and the Honey Tree) and has produced numerous sequels since, turning the characters into a major Disney franchise that, according to some estimates, generates up the $6 billion annually for the company.

    But how did Disney acquire the rights to Pooh? That is a story in itself and, as often happens when intellectual property is worth a lot of money, it led to no small amount of legal wrangling. Milne held the literary copyright on the Pooh works until his death in 1956, but in 1930 the North American merchandising and recording rights to Pooh were acquired from Milne by Stephen Slesinger for $1000 (worth considerably more then than now), plus royalties on sales. Slesinger was a US radio, TV, film, and comic book producer who licensed a number of popular literary characters, including Tarzan, Buck Rogers and others. Slesinger created various Pooh-branded products–a doll, a record, a board game (marketed by Parker Brothers, in colour, which is when Pooh’s red shirt appeared for the first time)–as well as broadcasts and animation. Slesinger died in 1953 and in 1961 his widow assigned all the rights in the 1930 agreement to the Walt Disney Company.

    Meanwhile, Milne died in 1956, leaving his rights to Pooh to his widow (through the Pooh Properties Trust) and three organizations: Westminster School, the Royal Literary Fund and the Garrick Club, in London. When Disney acquired the rights that Slesinger’s widow controlled in 1961, it also struck a deal with the holders of Milne’s copyrights, paying them all royalties on a semi-annual basis. The merchandising of Pooh characters was immensely profitable. In 2001 Disney bought out the rights owned by the four British entities for $350 million. Some of the proceeds went to establish a trust for Milne’s handicapped granddaughter Clare, (although Clare died in 2012, the Clare Milne Trust still exists to provide support for people with disabilities in Devon and Cornwall), while the Royal Literary Fund, which got £90 million, established a Fellowship Fund for writers.

    In the meantime, things were getting hot between Slesinger’s widow (but not Milne’s family) and the Disney Corporation, influenced by changes in US law that extended the term of copyright protection in the United States. Originally, under the 1909 US Copyright Act, the US copyright in Milne’s works would have expired between 1980 and 1984 (56 years after date of publication). However, in 1976 there was a major revision to US copyright law whereby the term of protection was extended from a maximum of 56 years after publication, to the life of the author plus 50 years. Works owned by corporations (aka “works for hire”) such as the works licensed to Disney would have a protection period of 75 years from the date of publication, as a rough equivalency. Thus, in the US, Milne’s works would fall into the public domain between 1999 and 2003. However, in 1998 the Sonny Bono Copyright Term Extension Act was passed extending copyright protection for an additional twenty years, e.g. life of the author plus 70 years, or 95 years from date of publication for corporately owned works, in large part to bring the US term of  protection into line with that of the EU, as I explained here (“The Mickey Mouse Copyright Extension Myth: A Convenient “Straw Man” to Attack”). This explains why the 1926 Winnie-the-Pooh book did not enter the public domain in the US until January 1, 2022.

    This is where it all starts to get really complicated. As part of the 1976 extension, some existing copyrights such as the one for the Pooh stories would become much more valuable. Therefore, the new law gave authors specified windows during which they could reclaim copyrights that had been assigned to others, so the extension period could be brought back under their control if they wished, and then presumably relicensed for an additional amount. This could be done at any time up to 1989. Thus Milne’s estate could, in theory, terminate Milne’s 1930 agreement with Slesinger–which had subsequently been assigned to Disney– and reclaim it. Given the investment Disney had put into the Pooh franchise, this constituted a serious risk for the company. Disney met with both the widow Slesinger and Milne’s son in 1983 to sort things out. As a result, the 1930 and 1961 agreements were rescinded and a new licence was issued by the Milne estate to the Slesinger Corporation, which in turn granted the rights to Disney. Presumably more money changed hands. The 1998 extension of the copyright term opened up a process of potential copyright reclamation similar to that which had occurred with the 1976 amendment, that is to say that it allowed authors to terminate pre-1978 assignments and licences where this had not already been done.

    Now let’s turn to the dispute that had broken out between Slesinger’s widow and Disney subsequent to the 1983 agreement between the parties. In 1991 the Slesinger Corporation sued Disney in a California state court claiming that Disney was under-calculating royalties under the 1983 agreement. The action was dismissed, in part on the basis of malfeasance by investigators hired by the Slesinger Corporation. Slesinger then changed tactics and sued in federal court alleging trademark and copyright violation. To counter this, Disney then made an agreement with Clare Milne whereby she would try to reclaim the rights that had been assigned to Slesinger in 1930 under the 1998 extension that allowed authors to reclaim copyright in pre-1978 works. If successful, this would nullify her agreement with Slesinger and by extension, Slesinger’s subsequent deal with Disney, effectively ending Slesinger’s suit. Having reclaimed her copyright, Clare Milne would then assign her rights to Disney. But it didn’t work out that way.

    Slesinger’s lawyers argued that the 1983 agreement trumped the rights of reclamation for Clare, and the courts agreed. She was unable to invalidate the 1983 agreement that had assigned her rights to Slesinger, a setback for Disney. The original case continued, with Slesinger pursuing its claims of trademark, trade dress and copyright infringement, claiming $700 million in denied royalties. In the end, after almost two decades of litigation, in 2009 Disney emerged triumphant. Among the grounds for dismissal of Slesinger’s claims was the fact that in earlier court proceedings, it had argued Disney was undercalculating the revenues for the rights Slesinger had assigned to it. Later, in contradiction of its earlier position, Slesinger claimed it had not assigned these rights to Disney and was seeking to assert them. Under the doctrine of estoppel, you can’t have it both ways. Nevertheless, while it did not win on its claim of underpaid royalties, Schlesinger continued and continues to earn royalties from Disney. And the Disney machine rolls on.

    That is a lot of bother over a “bear with little brain”, but when there are hundreds of millions of dollars at stake, who gets their paws into the honey pot is important. Disney has been very meticulous in protecting its hard-won rights to Pooh, which explains its unhappiness with the Town of White River when it wanted to erect its Pooh statue back in 1989. White River is the town in northern Ontario where Winnie (short for Winnipeg) was first discovered by Canadian Army veterinarian Lt. Harry Colebourn, who bought him off a trapper in August 1914 when Colebourn’s troop train that was heading for the east coast, and eventually Britain, stopped at the small town. Winnie went on to Britain to serve as the mascot of Colebourn’s regiment and was eventually donated to the London Zoo, where a decade later he became the object of affection for one of the many children visiting the zoo, Milne’s son Christopher Robin. The rest is history—and White River in the 1980s was eager to cash in on this history. It’s other claim to fame that it was the coldest town in Canada wasn’t attracting many visitors.

    At first, Disney suggested the town erect a statue to a small black bear, (a bear that looked like a real bear) similar to the one Harry Colebourn had acquired in 1914. Eventually they relented, no doubt realizing the promotional value of a Winnie statue in the town where the original Winnie had been found. That is the kind of win/win partnership demonstrated when Disney and Canada Post collaborated in 1996 to produce the Winnie the Pooh postage stamps featured at the top of this blog post.

    As you can see, Winnie has gone through several wars; a series of copyright wars, the Great War and more recently the “war” for trade and technology leadership between the US and China. China famously banned Winnie from the Chinese internet after memes appeared comparing a rotund Xi Jinping walking beside a lanky Barack Obama, with both of them looking quite a bit like Pooh and Tigger going for a stroll. With all these wars under his belt, what will Pooh get up to next?

    This article was first published on Hugh Stephens Blog