Disney’s Limiting of the Public Domain

 

Sydney Fenton | April 6th, 2022

 

 

Creation of Copyright and the Public Domain

On May 31, 1790, the first copyright law was enacted under the new United States Constitution, modeled after Britain’s Statute of Anne.[1] The original law was relatively limited in scope and had a copyright term of merely fourteen years.[2] Today most content we consume– television shows, movies, art, characters, etc.—enjoy copyright protection that will outlast most of us. But as recently as fifty years ago, the majority of copyrighted works fell into the public domain just 28 years after their creation.[3]  From the original term of fourteen years[4] to the current term of the life of the author plus seventy years—and for corporate authors ninety-five years from the first publication or one-hundred twenty years from creation.[5] However, copyright law has not just expanded in time but also in scope. Copyright holders do not just possess the right to copy their work; they also have the right to control their work being publicly displayed or performed.[6] Copyrights also include the right to create derivative works—a work based upon one or more preexisting works that may be recast, transformed, or adapted.[7]

The first copyright law did not just create copyright, it also created the public domain. [8] The public domain refers to creative materials that are not protected by intellectual property, and authors are free to copy, publish, distribute, and create new works based upon the original.[9] Consequently, the move towards longer copyright terms was also a shift away from individual creators and towards a shrinking public domain. While creative works are today still created by individuals, the most profitable forms of works are reserved for corporations; and the corporation with the most profitable form of creative works is The Walt Disney Company.[10]

The Copyright Term Extension Act, otherwise known as “the Mickey Mouse Copyright Act” — because the Walt Disney Company benefitted significantly from the act– went into effect in 1998, thus freezing the public domain by retroactively extending copyright terms by twenty years.[11] The extra twenty years gave Disney extended protection over such works as the original Mickey Mouse in Steamboat Willie and A.A. Milne’s Winnie-the-Pooh. However, there was a tradeoff to extending Disney’s copyrights, “the shared collective of creativity, held in common by all people, stopped growing.”[12]

Disney’s limiting of the Public Domain

While Mickey Mouse is arguably an original Walt Disney creation, or arguably a compilation of elements coming from the public domain, a large portion of Disney’s works to follow were unoriginal.[13] Famous Disney princesses such as Cinderella, The Little Mermaid, Sleeping Beauty, Snow-white, and Beauty and the Beast are all based on fairytales Disney took from the public domain.[14] Interestingly enough, many of the famous Disney fairytales were taken from the Brothers Grimm stories, which themselves took from the public domain. The Brothers Grimm took public domain works that had existed for centuries and altered them in such a way as to gain copyright ownership over them.[15] This is an example of the beauty of the public domain, that once a copyright term has ended, anyone can do as they wish with the creative work. However, unlike Disney’s stronghold on these stories, the Brothers Grimm were operating in a time with a limited copyright monopoly so their harm to the public domain was much more minimal.[16]

When Disney is the one to take hold of works in the public domain, that invariably limits the operation of it.[17] Disney is essentially “re-copyrighting” works by adding its own embellishments. Although Disney does not own the original or basic structure of these stories, Disney does own everything it has added.[18]  The concern is not Disney’s use of the public domain but the combination of the monopoly of copyright with Disney’s overall monopoly power in the creative culture.[19]

Disney’s version of these stories has come to dominate over the originals. When a story enters the public domain, the story elements, including its characters “become fair game” for other authors to use.[20] However, this freedom to create new derivative works based on material from the public domain ends where the resulting work comes in conflict with works that are still copyrighted.[21]

Han Solo

While the Han Solo copyright from the first Star Wars movie, Star Wars: Episode IV- A New Hope, is not set to expire until 2072, because Disney keeps creating derivative works, it is inevitable that once Han Solo enters the public domain any resulting works will come in conflict with Disney’s copyright.

In 2012, the Walt Disney Company purchased rights to the Star Wars franchise with the intent to produce a new film every few years and to build Star Wars: Galaxy Edge (a Star Wars-themed land in both Disneyworld and Disneyland).[22] Because Disney is a corporation and therefore an immortal entity, Disney has a lot of incentive to extend copyright protection to the Star Wars characters for as long as they can.[23]

One of the most notable characters from the Star Wars franchise, Han Solo, may have died in Disney’s Star Wars: Episode VII- The Force Awakens, but the copyright did not die with him.[24] Since the character’s death, Disney has brought him back for subsequent movies and even created a Han Solo spin-off film called Solo with a copyright term that is not set to end until 2113. This creates at least a period of 40 years where some aspects of the Han Solo character are in the public domain, namely from the original movie, while other parts from the subsequent works are still under protection.[25] During this period, if authors decide to create works with the Han Solo that is in the public domain, and those works are fashioned in such a way so as to cause the audience to think of the Han Solo that is still under copyright, the new works will violate Disney’s copyright.[26] Since the characteristics of Han Solo have continued to be used in subsequent works by Lucas films and Disney, it will be almost impossible for authors to create a new work that does not make the audience think of Disney’s Han Solo. Realistically, the only use of Han Solo once he enters the public domain would be to reproduce the original movie in the exact form it was originally introduced.[27] Therefore, it seems that Disney has a perpetual copyright and monopoly on this character for as long as Disney continues to make new works. [28]

Winnie-the-Pooh

Winnie-the-Pooh has recently come into the public domain as of January 2022.[29] The mid-1920’s iteration of Pooh Bear is now available to anyone free of charge.[30] Everything in the original book—the plot, the dialogue, the settings, the events, and the characters, such as Rabbit, Piglet, Owl, Kanga, and Roo—are now all in the public domain; Tigger will follow shortly as he was not introduced until 1928. Essentially, “Disney still own their version of me [Winnie-the-Pooh]… But as long as I don’t put a little red shirt on, I can do as I like.” [31]

However, anyone interested in creating something using Winnie-the-Pooh must be aware that Disney could potentially put up a fight.[32] One of the most notable uses of Winnie-the-Pooh since his entrance into the public domain has been Ryan Reynolds commercial called “Winnie-the Screwed.”[33]  In Ryan Reynolds commercial, which aired just one day after the little yellow bear entered the public domain, Ryan Reynolds jokingly said, “I expect that we’ll be hearing from a certain mouse about this Pooh very very soon.”[34] Ryan Reynolds is seemingly joking, but he is also disclaiming that this commercial is not in any way related to Disney.[35]

The reason that Winnie-the-Pooh entering the public domain has garnered so much attention is because of Disney. Disney acquired the rights to Winnie-the-Pooh in 1961, and since then, has released a continual stream of movies, television shows, and products featuring characters from the hundred-acre-woods.[36] Because of Disney, Winnie-the-Pooh is one of the most recognizable cartoon characters in the world. This also means that any artistic work using the Public Domain Winnie-the-Pooh might be identified with Disney, rather than the original A.A. Milne book.[37] It might well serve future Public Domain Winnie-the-Pooh works to include disclaimers that it is not produced or sponsored by Disney.[38] However, it is likely that the new works, even with a disclaimer, will come in conflict with Disney’s copyright.

While Winnie-the-Pooh may be in the public domain, there are other intellectual property issues such as copyrights on derivative works and trademarks to be aware of; Disney holds trademark rights on various Winnie-the-Pooh products, from plush dolls to pajamas.[39] And beyond just “re-copyrighting” the works by making animated features, Disney is constantly creating derivative works, such as stage musicals, and live-action films.[40] With each new take on works from the public domain, a new copyright term comes into existence, thus extending Disney’s ownership.[41] “The derivative works right gives Disney the exclusive right to authorize stuffed animals, home videos, t-shirts, pencils, figurines, games, teapots, and anything else bearing images of characters from Disney’s copyrighted works.”[42] Ultimately, Disney takes from the public domain and then uses its resulting copyrights to block other authors’ use of the public domain.[43]

In 2024, Steamboat Willie, the first depiction of Mickey Mouse, will enter the public domain. As crucial as Winnie-the-Pooh is to Disney, nothing beats the significance of Mickey Mouse. How Winnie-the-Pooh is used in the next few years may be a look into the future of how Disney will deal with Mickey Mouse and other notable characters such as Han Solo. [44]

Conclusion

The more Disney’s additions to public domain works come to define the original story, the more Disney is able to assert ownership over the story itself and its characters.[45] The public domain was built on the theory that society needs access to creative capital to progress. As the public domain has dwindled and copyright terms have expanded alongside Disney’s “re-copyrighting” and use of derivative works, society has become unable to engage with previous works.[46] While Disney has successfully taken stories from the public domain and embellished them, there needs to be more room for other creative authors to do the same. The world owes a great debt to the public domain because without it, these Disney characters and movies we all love– Frozen, Winnie-the-Pooh, Beauty and the Beast, Pinocchio, and many more— would not have existed.

 

 

 

 

[1] See Highlight: Congress Passes First Copyright Act, Copyright.gov (last visited Feb. 23, 2022),  https://www.copyright.gov/timeline/timeline_18th_century.html.

[2] See Jonathan Bailey, What Winnie-the-Pooh Lapsing into the Public Domain Really Means, Plagiarism Today (January 5, 2022), https://www.plagiarismtoday.com/2022/01/05/what-winnie-the-pooh-lapsing-into-the-public-domain-really-means/.

[3] See Michael Landau, § 1.9. Duration of Copyright, Lindey on Entertainment, Publ. and the Arts § 1:9 (3d ed.)

[4] See Deven R. Desai, The Life and Death of Copyright, 2011 Wis. L. Rev 219 (2011) (citing Act of 1790, ch. 15, § 1, 1 Stat. 124, 124 (repealed 1834)).

[5] 17 U.S.C. § 302(c) (2018).

[6] 17 U.S.C. § 106 (2018).

[7] 17 U.S.C. § 101 (2018).

[8]  See Stacet M. Lantagne, Building a Better Mousetrap: Blocking Disney’s Imperial Copyright Strategies, 12 Harv. J. Sports & Ent. L. 141, 148 (2021) (citing Oren Bracha, The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant, 25 Berkeley Tech. L. J. 1427, 1437 (2010)).

[9]  Beverly E. Hjorth, Lin J. Hymel, What Does “Public Domain” Mean after the U.S. Supreme Court Decision in Golan v. Holder?, 45 Md. B.J. 26, 27 (2012).

[10] See Lantagne, Supra Note 8. (citing Disney Reigns Supreme over the Film Industry, ECONOMIST (Jan. 2, 2020), https://www.economist.com/graphic-detail/2020/01/02/disney-reigns-supreme-over-the-film-industry).

[11] See Id. at 156.

[12] See Id. at 157.

[13] See Jessica Litman, Mcikey Mouse Emeritus: Character Protection and the Public Domain, 11 U. Miami Ent. & Sports. L. Rev 429, 433-34 (1994).

[14]  See April Chan, Five Dark and Gruesome Fairytales Behind Classic Disney Movies, ABC News (Aug. 4, 2015),  https://www.abc.net.au/news/2015-08-05/dark-fairytale-origins-of-classic-disney-movies/6671602.

[15] See Supra Note 8 at 153.

[16] See Id.

[17] See Id. at 153.

[18] See Id. at 144.

[19] See Id. at 156.

[20] See Klinger v. Conan Doyle Estate, Ltd., 755 F.3d 496, 500 (7th Cir. 2014)(citing Silverman v. CBS Inc., 870 F.2d 40, 49-51 (2nd Cir. 1989)).

[21] See Id. at 501 (quoting Warner Bros. Entm’t, Inc. v. X One X Prods., 644 F.3d 584, 596 (8th Cir. 2011)).

[22] See Ken Storey, Disney may be ready to admit they screwed up their Star Wars land, but only because ‘The Mandalorian’ is making them do it, Orlando Weekly (Jan. 14, 2021)

https://www.orlandoweekly.com/orlando/disney-may-be-ready-to-admit-they-screwed-up-their-star-wars-land-but-only-because-the-mandalorian-is-making-them-do-it/Content?oid=28617566; see also Alex Ben Block, Disney set to buy Lucasfilm for 4.05 Billion; new ‘Star Wars’ Movie Set for 2015, The Hollywood Reporter (October 30, 2012)

https://www.hollywoodreporter.com/news/general-news/disney-buy-lucasfilm-405-billion-384448/.

[23] See id.

[24] See Mitch Uptegrove, Copyright Protection: The Force Could Not Keep Han Solo Alive, But Can It Protect Him From Authors’ Derivative Works?, 81 Mo. L. Rev. 629, 649 (2016)

[25] See id.

[26] See id.  (citing Warner Bros, 644 F.3d at 596)

[27]  See id.

[28] See id.

[29] See Bailey, supra note 2.

[30]  Michael Cavna, ‘Winnie-the-Pooh’ just entered the public domain. Here’s what that means for fans., The Washington Post (Jan. 8, 2022) https://www.washingtonpost.com/arts-entertainment/2022/01/08/winnie-pooh-public-domain/.

[31] See id.

[32] See id.

[33] See Ryan Reynolds, Winnie-the-Screwed, YOUTUBE (Jan. 2, 2022), https://www.youtube.com/watch?v=5zx1aSY6k78

[34] Id.

[35]See id.

[36] See Bailey, supra note 2.

[37] See id.

[38] See Cavna, supra note 30.

[39] See id.

[40]  See Derek Khanna, 50 Disney Movies Based on the Public Domain, FORBES (Feb. 3, 2014), https://www.forbes.com/sites/derekkhanna/2014/02/03/50-disney-movies-based-on-the-public-domain/

[41] See Jennifer Jenkins, In Ambiguous Battle: The Promise (and Pathos) of Public Domain Day, 12 Duke L. & Tech. Rev. 1,4 (2013).

[42] Rebecca Tushnet, Copy this Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves it, 114 Yale L. J. 535, 542 (2004).

[43] Lantagne, Supra Note 8 at 144.

[44] See Bailey, supra note 2.

[45] See Lantagne, Supra Note 8 at 144.

[46] See id. at 174.