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On May 31, 1790, the first copyright law was enacted under the new United States Constitution, modeled after Britain\u2019s Statute of Anne.[1]<\/a> The original law was relatively limited in scope and had a copyright term of merely fourteen years.[2]<\/a> Today most content we consume– television shows, movies, art, characters, etc.\u2014enjoy 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]<\/a> \u00a0From the original term of fourteen years[4]<\/a> to the current term of the life of the author plus seventy years\u2014and for corporate authors ninety-five years from the first publication or one-hundred twenty years from creation.[5]<\/a> 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]<\/a> Copyrights also include the right to create derivative works\u2014a work based upon one or more preexisting works that may be recast, transformed, or adapted.[7]<\/a><\/p>\n The first copyright law did not just create copyright, it also created the public domain. [8]<\/a> 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]<\/a> 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]<\/a><\/p>\n The Copyright Term Extension Act, otherwise known as \u201cthe Mickey Mouse Copyright Act\u201d — 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]<\/a> The extra twenty years gave Disney extended protection over such works as the original Mickey Mouse in Steamboat Willie<\/em> and A.A. Milne\u2019s Winnie-the-Pooh<\/em>. However, there was a tradeoff to extending Disney\u2019s copyrights, \u201cthe shared collective of creativity, held in common by all people, stopped growing.\u201d[12]<\/a><\/p>\n 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\u2019s works to follow were unoriginal.[13]<\/a> Famous Disney princesses such as Cinderella, The Little Mermaid, Sleeping Beauty, Snow-white, <\/em>and Beauty and the Beast<\/em> are all based on fairytales Disney took from the public domain.[14]<\/a> 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]<\/a> 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\u2019s 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]<\/a><\/p>\n When Disney is the one to take hold of works in the public domain, that invariably limits the operation of it.[17]<\/a> Disney is essentially \u201cre-copyrighting\u201d 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]<\/a> \u00a0The concern is not Disney\u2019s use of the public domain but the combination of the monopoly of copyright with Disney\u2019s overall monopoly power in the creative culture.[19]<\/a><\/p>\n Disney\u2019s version of these stories has come to dominate over the originals. When a story enters the public domain, the story elements, including its characters \u201cbecome fair game\u201d for other authors to use.[20]<\/a> 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]<\/a><\/p>\n While the Han Solo copyright from the first Star Wars movie, Star Wars: Episode IV- A New Hope,<\/em> 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\u2019s copyright.<\/p>\n 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 <\/em>(a Star Wars-themed land in both Disneyworld and Disneyland).[22]<\/a> 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]<\/a><\/p>\n One of the most notable characters from the Star Wars franchise, Han Solo, may have died in Disney\u2019s Star Wars: Episode VII- The Force Awakens<\/em>, but the copyright did not die with him.[24]<\/a> Since the character\u2019s death, Disney has brought him back for subsequent movies and even created a Han Solo spin-off film called Solo<\/em> 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]<\/a> 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\u2019s copyright.[26]<\/a> 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\u2019s 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]<\/a> 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]<\/a><\/p>\n Winnie-the-Pooh has recently come into the public domain as of January 2022.[29]<\/a> The mid-1920\u2019s iteration of Pooh Bear is now available to anyone free of charge.[30]<\/a> Everything in the original book\u2014the plot, the dialogue, the settings, the events, and the characters, such as Rabbit, Piglet, Owl, Kanga, and Roo\u2014are now all in the public domain; Tigger will follow shortly as he was not introduced until 1928. Essentially, \u201cDisney still own their version of me [Winnie-the-Pooh]\u2026 But as long as I don\u2019t put a little red shirt on, I can do as I like.\u201d [31]<\/a><\/p>\n However, anyone interested in creating something using Winnie-the-Pooh must be aware that Disney could potentially put up a fight.[32]<\/a> One of the most notable uses of Winnie-the-Pooh since his entrance into the public domain has been Ryan Reynolds commercial called \u201cWinnie-the Screwed.\u201d[33]<\/a> \u00a0In Ryan Reynolds commercial, which aired just one day after the little yellow bear entered the public domain, Ryan Reynolds jokingly said, \u201cI expect that we\u2019ll be hearing from a certain mouse about this Pooh very very soon.\u201d[34]<\/a> Ryan Reynolds is seemingly joking, but he is also disclaiming that this commercial is not in any way related to Disney.[35]<\/a><\/p>\n 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]<\/a> 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]<\/a> It might well serve future Public Domain Winnie-the-Pooh works to include disclaimers that it is not produced or sponsored by Disney.[38]<\/a> However, it is likely that the new works, even with a disclaimer, will come in conflict with Disney\u2019s copyright.<\/p>\n 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]<\/a> And beyond just \u201cre-copyrighting\u201d the works by making animated features, Disney is constantly creating derivative works, such as stage musicals, and live-action films.[40]<\/a> With each new take on works from the public domain, a new copyright term comes into existence, thus extending Disney\u2019s ownership.[41]<\/a> \u201cThe 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\u2019s copyrighted works.\u201d[42]<\/a> Ultimately, Disney takes from the public domain and then uses its resulting copyrights to block other authors\u2019 use of the public domain.[43]<\/a><\/p>\n In 2024, Steamboat Willie<\/em>, 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]<\/a><\/p>\n The more Disney\u2019s 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]<\/a> 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\u2019s \u201cre-copyrighting\u201d and use of derivative works, society has become unable to engage with previous works.[46]<\/a> 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,<\/em> and many more\u2014 would not have existed.<\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n [1]<\/a> See Highlight: Congress Passes First Copyright Act, <\/em>Copyright.gov (last visited Feb. 23, 2022), \u00a0<\/em>https:\/\/www.copyright.gov\/timeline\/timeline_18th_century.html<\/a>.<\/p>\n [2]<\/a> See <\/em>Jonathan Bailey, What Winnie-the-Pooh Lapsing into the Public Domain Really Means,<\/em> Plagiarism Today (January 5, 2022), https:\/\/www.plagiarismtoday.com\/2022\/01\/05\/what-winnie-the-pooh-lapsing-into-the-public-domain-really-means\/<\/a>.<\/p>\n [3]<\/a> See <\/em>Michael Landau, \u00a7 1.9. Duration of Copyright<\/em>, Lindey on Entertainment, Publ. and the Arts \u00a7 1:9 (3d ed.)<\/p>\n [4]<\/a> See<\/em> Deven R. Desai, The Life and Death of Copyright,<\/em> 2011 Wis. L. Rev 219 (2011) (citing Act of 1790, ch. 15, \u00a7 1, 1 Stat. 124, 124 (repealed 1834)).<\/p>\n [5]<\/a> 17 U.S.C. \u00a7 302(c) (2018).<\/p>\n [6]<\/a> 17 U.S.C. \u00a7 106 (2018).<\/p>\n [7]<\/a> 17 U.S.C. \u00a7 101 (2018).<\/p>\n [8]<\/a>\u00a0 See <\/em>Stacet M. Lantagne, Building a Better Mousetrap: Blocking Disney\u2019s Imperial Copyright Strategies<\/em>, 12 Harv. J. Sports & Ent. L. 141, 148 (2021) (citing<\/em> Oren Bracha,\u00a0The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant, <\/em>25 Berkeley Tech. L. J. 1427, 1437 (2010)).<\/p>\n [9]<\/a> \u00a0Beverly E. Hjorth, Lin J. Hymel, What Does \u201cPublic Domain\u201d Mean after the U.S. Supreme Court Decision in Golan v. Holder?, 45 Md. B.J. 26, 27 (2012).<\/p>\n [10]<\/a> See <\/em>Lantagne, Supra<\/em> Note 8. (citing Disney Reigns Supreme over the Film Industry<\/em>,\u00a0ECONOMIST\u00a0(Jan. 2, 2020), https:\/\/www.economist.com\/graphic-detail\/2020\/01\/02\/disney-reigns-supreme-over-the-film-industry<\/a>).<\/p>\n [11]<\/a> See Id.<\/em> at 156.<\/p>\n [12]<\/a> See Id. <\/em>at 157.<\/p>\n [13]<\/a> See <\/em>Jessica Litman, Mcikey Mouse Emeritus: Character Protection and the Public Domain, <\/em>11 U. Miami Ent. & Sports. L. Rev 429, 433-34 (1994).<\/p>\n [14]<\/a> \u00a0See <\/em>April Chan, Five Dark and Gruesome Fairytales Behind Classic Disney Movies<\/em>, ABC News (Aug. 4, 2015),\u00a0 https:\/\/www.abc.net.au\/news\/2015-08-05\/dark-fairytale-origins-of-classic-disney-movies\/6671602<\/a>.<\/p>\n [15]<\/a> See Supra<\/em> Note 8 at 153.<\/p>\n [16]<\/a> See Id. <\/em><\/p>\n [17]<\/a> See Id.<\/em> at 153.<\/p>\n [18]<\/a> See Id. <\/em>at 144.<\/p>\n [19]<\/a> See Id. <\/em>at 156<\/em>.<\/p>\n [20]<\/a> See Klinger v. Conan Doyle Estate, Ltd<\/em>., 755 F.3d 496, 500 (7th Cir. 2014)(citing Silverman v. CBS Inc.<\/em>, 870 F.2d 40, 49-51 (2nd Cir. 1989)).<\/p>\n [21]<\/a> See Id.<\/em>\u00a0at 501 (quoting\u00a0Warner Bros. Entm\u2019t, Inc. v. X One X Prods.,<\/em> 644 F.3d 584, 596 (8th Cir. 2011)).<\/p>\n [22]<\/a> See <\/em>Ken Storey, Disney may be ready to admit they screwed up their Star Wars land, but only because \u2018The Mandalorian\u2019 is making them do it, <\/em>Orlando Weekly (Jan. 14, 2021)<\/p>\n 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<\/a>; see also<\/em> Alex Ben Block, Disney set to buy Lucasfilm for 4.05 Billion; new \u2018Star Wars\u2019 Movie Set for 2015<\/em>, The Hollywood Reporter (October 30, 2012)<\/p>\n https:\/\/www.hollywoodreporter.com\/news\/general-news\/disney-buy-lucasfilm-405-billion-384448\/<\/a>.<\/p>\n [23]<\/a> See id. <\/em><\/p>\n [24]<\/a> See <\/em>Mitch Uptegrove, Copyright Protection: The Force Could Not Keep Han Solo Alive, But Can It Protect Him From Authors\u2019 Derivative Works?, <\/em>81 Mo. L. Rev. 629, 649 (2016)<\/p>\n [25]<\/a> See id. <\/em><\/p>\n [26]<\/a> See id. <\/em>\u00a0(citing<\/em> Warner Bros, <\/em>644 F.3d at 596)<\/p>\n [27]<\/a> \u00a0See id. <\/em><\/p>\n [28]<\/a> See id. <\/em><\/p>\n [29]<\/a> See Bailey<\/em>, supra <\/em>note 2.<\/p>\n [30]<\/a> \u00a0Michael Cavna, \u2018Winnie-the-Pooh\u2019 just entered the public domain. Here\u2019s what that means for fans., <\/em>The Washington Post (Jan. 8, 2022) https:\/\/www.washingtonpost.com\/arts-entertainment\/2022\/01\/08\/winnie-pooh-public-domain\/<\/a>.<\/p>\n [31]<\/a> See id. <\/em><\/p>\n [32]<\/a> See id. <\/em><\/p>\n [33]<\/a> See <\/em>Ryan Reynolds, Winnie-the-Screwed, <\/em>YOUTUBE (Jan. 2, 2022), https:\/\/www.youtube.com\/watch?v=5zx1aSY6k78<\/a><\/p>\n [34]<\/a> Id. <\/em><\/p>\n [35]<\/a>See id. <\/em><\/p>\n [36]<\/a> See Bailey<\/em>, supra <\/em>note 2. <\/a><\/p>\n [37]<\/a> See id. <\/em><\/p>\n [38]<\/a> See <\/em>Cavna, supra <\/em>note 30.<\/p>\n [39]<\/a> See id. <\/em><\/p>\n [40]<\/a> \u00a0See<\/em>\u00a0Derek Khanna,\u00a050 Disney Movies Based on the Public Domain<\/em>,\u00a0FORBES\u00a0(Feb. 3, 2014), https:\/\/www.forbes.com\/sites\/derekkhanna\/2014\/02\/03\/50-disney-movies-based-on-the-public-domain\/<\/a><\/p>\n [41]<\/a> See <\/em>Jennifer Jenkins, In Ambiguous Battle: The Promise (and Pathos) of Public Domain Day, <\/em>12 Duke L. & Tech. Rev. 1,4 (2013).<\/p>\n [42]<\/a> Rebecca Tushnet, Copy this Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves it, <\/em>114 Yale L. J. 535, 542 (2004).<\/p>\n [43]<\/a> Lantagne, Supra<\/em> Note 8 at 144.<\/p>\n [44]<\/a> See Bailey<\/em>, supra <\/em>note 2. <\/a><\/p>\n [45]<\/a> See <\/em>Lantagne, Supra<\/em> Note 8 at 144.<\/p>\nDisney\u2019s limiting of the Public Domain <\/u><\/em><\/h3>\n
Han Solo<\/u><\/em><\/h4>\n
Winnie-the-Pooh <\/u><\/em><\/h4>\n
Conclusion<\/u><\/em><\/h3>\n