Analysis: here's why a Winnie the Pooh horror movie was perfectly legal to make as long as they didn't have Winnie in a red shirt
By Liam Sunner, Queen's University Belfast
The next decade and beyond is quickly shaping up to be a very interesting and contentious period for intellectual property law at a global level. The foundational agreement of modern IP, the Agreement on Trade-Related Aspects of Intellectual Property Rights will turn 30 2025, but many global icons within western media are set to enter the public domain over the next decade.
What's the importance of the public domain to wider society and what are some of the issues that many media conglomerates face with their flagship icons set to enter the public domain?
To start, we need to look at what's at stake. From the right holders' perspective, this relates to the artistic and economic control and exploitability of their created works. This itself can be a very contested area of discussion concerning the creation of the work by the author or by the larger company that created the work under contract or later sold the work.
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From RTÉ 2fm's Dave Fanning Show, journalist Tara Brady talks about what happens when works like books enter the public domain
This is phrased as such to reflect the current ownership of Superman and the legacy of the case. This is significant as Superman, the foundation of DC Comics and arguably the entire genre of superhero comics, is set to enter the public domain on January 1st 2033.
When this happens, any material within Action Comics #1 will be in the public domain and will be considered fair use for adaptation, exploitation, and reworking by the public at large. However, Superman and various visual elements will still be under the protections afforded to DC comics under their existing (and strongly defended) trademark.
Many other media empires face such issues. The most notable is Disney with Mickey Mouse set to enter the public domain in 2024. This is significant as Mickey Mouse, the original Steamboat Willie short in particular, is considered a foundational element of Disney, one they have also strongly contested.
From Walt Disney, the original Steamboat Willie short
At the same time, Disney actively and successfully lobbied for higher standards of protection, but also extensions to the copyright protection term to avoid Mickey Mouse from entering the public domain. Such efforts have continued and have shifted to seek trademark protection over the original short, which has succeeded to various degrees. However, this requires different assessment criteria beyond this current discussion.
There is also the impact on the work once it enters the public domain as it can now be adapted by anyone. The most striking case in recent years relates to the horror movie featuring the cast of Winnie the Pooh, which illustrates the broader issues well. As the original Winnie-the-Pooh book, including the illustrations, is now in the public domain, there is nothing to prevent such an adaption, but this only applies to the original publication.
Two key elements which the broader public associate with Winnie the Pooh are missing from the original: his red shirt and his friend Tigger. Tigger was published in subsequent volumes and still protected under copyright so was unable to be used in the horror adaption. However, the iconic red shirt was an element included in the Disney-produced cartoons. As such, this expression falls under the protection of Disney from a copyright perspective and, due to the nature of Disney as a media empire, a strongly contested trademark. So while the concept of Winnie the Pooh is available for use from the public domain, this cannot include the red shirt in its use.
Trailer for horror movie Winnie the Pooh: Blood and Honey
This raises the interesting question of what is the purpose of protection at the end period of the protection. For the majority, the economic justification of protecting the work to allow the heirs of the author to profit from their artistic expression holds suggestive weight, but should it apply to further descendants? How should this differ for corporate entities, often those who have historically exploited the creators or artists?
At the same time, the protection term ensures the work is not incorrectly exploited or creatively abused, often with the heirs or designate body becoming a somewhat stewart or guardian of the work and ensuring its artistic integrity during the period. That is not to say this system is open to abuse, mismanagement or overly zealous restrictions, but it may operate as a net benefit overall.
Dr Liam Sunner is a lecturer in the School of Law at Queen's University Belfast
The views expressed here are those of the author and do not represent or reflect the views of RTÉ
