Dori Zavala:
Welcome to Open for Show Business, a podcast for indie filmmakers where we talk about the business of show business. I'm your host, Dori Zavala, an entertainment attorney and producer. Each episode, we'll talk about interesting news in the entertainment world and do a deep dive on a topic related to the business of filmmaking. Now let's fade in....
Hello filmmakers! I'm Dori Zavala, an entertainment attorney and producer, and I'm here to teach you the business of show business. Today we're talking about Winnie the Pooh, Blood and Honey, and how a UK filmmaker was allowed to create a horror movie out of a timeless classic - and avoid the wrath of Disney. Stay tuned for a closer look behind the scenes.
Winnie the Pooh was originally created by the author A.A. Milne in the 1920s, and illustrated by E.H. Shepard. In 1961, Disney licensed the characters for use in animations. In 2022, the original books created and illustrated in the 1920s entered the public domain. The movie Winnie the Pooh, Blood and Honey came out that same year, but the producers had to walk a tricky line using that character. And while the original books were in the public domain, the Disney versions were not.
Today, we're diving into the copyright laws behind Winnie the Pooh and what you, as a filmmaker, need to know about using works in the public domain. Under current copyright laws passed in 1978, an individual author holds a copyright for the life of the author plus 70 years. But for works created prior to 1978, different rules apply. There were different time periods for copyright, different rules for expiration, and different rules for extensions of copyright.
Now, public domain refers to work that is not copyrighted and is free for public use. How do works enter the public domain? One way could be through copyright expiration. And because copyrights have changed over the years, different rules and different time periods may apply to different works. Another way that works can enter the public domain is through failure to renew a copyright.
Under the law now, copyrights are not required to be renewed. But previously they were. And another way could be failure to comply with copyright formalities. Again, these are usually related to earlier works, and another way that a work could enter the public domain is by an author taking their copyrighted work and voluntarily placing it into it, into the public domain for free use. An example of this that we often see with software would be open source software, open source licensing, or photography, where it's open source or certain Creative Commons licenses, where it's available for public use for free.
There are definitely perks of using public domain works. It allows for using these works without permission and without licensing fees, especially if you're using a known name like Winnie the Pooh. This can help with notoriety and publicity for the film. Some pitfalls of using public domain are that later derivative works and adaptations can still be protected through trademark or copyright, and it can also be tricky to distinguish between public domain and copyright elements.
Now let's talk about the case of Winnie the Pooh. While the name Winnie the Pooh may be trademarked, the original Winnie the Pooh stories by A.A. Milne and illustrations by E.H. Shepard have entered the public domain. This means the basic storylines and characters as they originally appeared can be used freely. But Disney still holds the copyright and trademarks on their depictions of Winnie the Pooh, which are the characters, the added or specific portrayals of characters or locations, and visual and design elements.
For example, Tigger is a character that was added by Disney and he was not in the original books. There's also specific depictions of the 100 Acre Woods setting and some design elements like Winnie's red shirt.
Another example of this is Frankenstein. While the original Mary Shelley novel, written in 1931, is in the public domain, the specific visual portrayal of Frankenstein's monster, as popularized by the universal film, is protected by copyright and trademark. It's important when you're looking at public domain works that you're also looking for adaptations and trademarks that were later created as derivative works of what's in the public domain.
Those works very well may still be copyrighted or trademarked and protected, even though the original work is in the public domain. So how did Winnie the Pooh, Blood and Honey deal with this? Well, in case you haven't seen it, the movie reimagines Winnie the Pooh characters in a horror setting and seems to only use those elements that are in the public domain from the original books and illustrations.
The producers had to have taken a close look at the original books versus the Disney editions, and made sure to only use the elements that were from the original books. It also helps that the genre is very different from a Disney movie. So the producers could argue in this case that this was a transformative use of the work by taking Winnie the Pooh from being a children's story to fitting it into more of a slasher horror genre.
While Winnie the Pooh is iconic, there is still an analysis that any filmmaker needs to go through while using any work in the public domain. First, you have to closely review what is in the public domain versus later additions that may still be under copyright. This means that you need to research. You have to ensure that your portrayal of the character doesn't use the specific elements that were introduced in later adaptations, such as Disney, that may still be protected by trademark. Specific character designs, clothing, or additional character traits that are not present in the public domain material could still be trademarked or copyrighted. Also, you have to make sure that the film's marketing doesn't suggest an official connection or endorsement from copyright or trademark holders of later adaptations or derivative works.
For example, in this case Disney. This includes being clear that the film is an independent adaptation not affiliated with the trademark owner. Now, how should you go about conducting this research? You'll want to start with online research to verify the public domain status of a work, and make sure that you're not infringing on any trademarks. Don't just trust ChatGPT with this.
As great as ChatGPT can be on summarizing information, it does get a lot of things wrong. There are specific websites that you can go to to help you with this work. A couple of examples are the Creative Commons website. It's primarily focused on works that are licensed for free use under Creative Commons licenses. But this website also provides a lot of resources for understanding public domain.
And it has tools like the public domain mark to identify works that are free of known copyright. Another website to check out is Google Books. There are scan books and many of them are in the public domain. But you can also search for specific works and you can check their copyright status. I've put together a free downloadable research resource with ways to identify public domain works and understand trademark protections. You can find that link in the show notes.
When conducting research, make sure that you're looking at not only the original creation dates, but also at the dates of later versions and adaptations, any of them that you can find. Keep in mind that copyright laws have changed over the years, so the current law may not be applicable to work that was originally created earlier than 1978.
And another thing to keep in mind is that the previous copyright laws sometimes were changed by later legislation. So, for example, if you have a work that was created in 1928 and you look up what the copyright law was in 1928, keep in mind that that law from 1928 may have been later changed by other laws and other legislation that could change the copyright laws that are applicable to that work.
Finally, copyright, trademark and public domain is complex stuff. If you're moving forward with production on a script based on a public domain, make sure that you consult with an entertainment attorney (like me) to review your specific project and make sure you're in the clear before you're spending all of this money on making your film and then you have issues with releasing it.
And that's all for today. Thank you, listeners, for tuning in, and I really appreciate your support. Make sure to download my free Research Resource List to help you with researching public domain works and trademarks. Subscribe to the podcast and stay tuned for future episodes. If you'd like to reach out with questions or comments, you can email me at [email protected]. Thanks for listening. If you enjoyed the podcast, please consider leaving a review as it helps others find us. Until next time. Fade out.
