January 18th is National Winnie the Pooh Day. On such a cuddly occasion you can’t help but reminisce about the “chubby little cubby all stuffed with fluff”. When most people hear Winnie the Pooh, they think of the iconic image from their childhood, the fluffy yellow bear in a red t-shirt holding a pot of honey who has starred in over 15 feature films, nine short films, four television. shows, and assorted video games, most of them created and owned by the Disney company.
Also in January is Public Domain Day, the annual event when the news widely announces that a new set of well-known works have entered the public domain in the United States. This year the most notable works were the “Steamboat Willie” version of Mickey Mouse and the original play of Peter Pan, while in 2022 it was Winnie the Pooh.
These announcements often imply that anyone may now use these childhood characters however they like, with no limitations and no repercussions. This is not the case. Just because a character has entered the public domain does not mean they are subject to a free for all.
What you may not know is that the red-shirted Winnie the Pooh most of us picture isn’t the only Winnie the Pooh. Rather, he is Disney’s adaptation of the 1927 teddy bear character Winnie-the-Pooh created by English author A. A. Milne. It is Milne’s version that has now entered the public domain, while Disney’s version is still protected by both copyright and trademark law.
What is the public domain? Unlike memories of iconic characters, the copyright protection in those characters doesn’t last forever. Rather, it lasts for a set duration of time after which copyright protection is lost, the character enters the public domain, and individuals or companies can use the character without the need to get permission. For A.A. Milne’s Winnie-the-Pooh, this protection lasted for 95 years as his original work was published before 1978. But the rights afforded the general public once a character has entered the public domain only apply to the specific work in question, not every variation. Thus, while the original Milne version of the anthropomorphic bear has entered the public domain, any characteristics added to the original character may still be protected under copyright law.
For example, in 1966, Disney released the first short film Winnie the Pooh and the Honey Tree (they acquired the licensing rights in 1961). This film introduced several elements to Milne’s classic character including the instantly-recognizable red shirt. Disney’s version has not yet entered the public domain, thus the iconic image of a red shirt on an anthropomorphic bear, as well as all of the films and television shows in which he appears, are still protected by Disney’s copyright.
If the original Winnie the Pooh has been in the public domain for a few years, why don’t we see hundreds of variations of the yellow bear sans shirt? In addition to its copyrights, Disney also owns the WINNIE THE POOH trademark. Unlike copyrights, trademarks have the potential to live forever so long as the trademark owner continues using the mark for the claimed goods and services.
Not only does Disney have common law trademark rights arising from their continuous use of WINNIE THE POOH movies and merchandise, but they also own eight active U.S. trademark registrations for the WINNIE THE POOH trademark covering goods as varied as clothing, jewelry, books, and toys. The situation is similar for Winnie the Pooh’s friends such as Eeyore, Tigger, and Piglet. Analysts estimate that Disney’s modern Winnie the Pooh franchise is worth as much as $6 billion dollars. That’s a lot of reasons for Disney to protect its rights.
The takeaway from all this? Yes, you might be able to create new works and new products featuring your version of Milne’s original bear stuffed with fluff, but you may want to avoid putting any clothing on it, such as shirts and nightcaps. And while you may be able to give a new creative work the title “Winnie the Pooh”, you run the risk of Disney objecting based on trademark infringement. Before you stick your nose in the proverbial honey tree, consult with a professional well-versed in trademark and copyright law.
By: Matthew Saunders | msaunders@sandsip.com and Sarah Leighton | sleighton@sandsip.com
