When the trailer for Winnie the Pooh: Blood and Honey hit the internet last year, it produced a mild viral hysteria. The angriest Pooh fans accused director Rhys Frake-Waterfield of invading their childhood psyches, the creative equivalent of napalming 100 Aker Wood. When the film was released in theaters, critics mauled it, agreeing “this Pooh stinks.” Others—50 percent of the audience on Rotten Tomatoes and a profitable proportion of Mexico—appreciated its gruesome absurdity.
Beneath the opprobrium lies an interesting legal question: How was a filmmaker whose previous movies included Croc!, Dinosaur Hotel, and Easter Bunny Massacre: The Bloody Trail able to twist one of Britain’s most beloved bears—a character associated with Disney for decades—into a honey-dribbling serial killer? The simple answer, of course, is that some of the bear’s copyright protection had expired. But the deeper, subtler point is that Pooh flogging Christopher Robin with Eeyore’s severed tail is good for the health of creativity in America.
English author A. A. Milne published the first Pooh book, Winnie-the-Pooh, in 1926. Its forest of cutesy critters was intended, famously, to entertain Milne’s son, Christopher Robin. Disney first began licensing Pooh in 1961, dropping the original hyphens and introducing new characters, like Gopher, who first appeared in Winnie the Pooh and the Honey Tree. In 2001, the company paid $350 million for the rights to Pooh. But that first book—which contains 10 stories, including classics in which Eeyore loses his tail and Pooh has an unfortunate bee encounter—entered the US public domain in January 2022, making way for Blood and Honey.
Frake-Waterfield explains that making his Pooh was a two-stage process. First, he could work only from the 1926 book, not any of Milne’s three later works (which will trickle into the public domain in the coming years), and certainly not from anything Disney added in its adaptations. So he cleared his mind of Pooh-related childhood memories. He couldn’t use Gopher—or Tigger—and he certainly couldn’t trap victims with a game of Poohsticks. Also, the bear had to be naked: It was Disney that decked him out in his delightful red crop top.
On top of all that, Frake-Waterfield had to be careful not to confuse the public. A Chucky-sized “little menace” of a Winnie that “runs around stabbing people,” in Frake-Waterfield’s words, runs the risk of eliding with Disney’s version. So his Pooh is Michael Myers-sized. To be extra careful, he Googled every detail in his story to ensure he hadn’t committed subconscious plagiarism. Blood and Honey hit theaters in February, and to date he’s heard nothing from Disney about his film.
A prevailing misconception about US copyright law is that it exists for artists to get paid. But, as Donald Harris, associate dean at Temple University’s Beasley School of Law, explains, this was not the framers’ intention when they protected “writings” (artistic works) for “limited times.” Rather (in contrast to the more protective conception of natural rights in Europe) copyright protection seeks to benefit the public. Specifically, it aims to ensure they get access to a wide variety of creative work. Congress could have implemented the Constitution’s copyright protections in any number of ways—tax breaks for people who publish new work, for instance—but they ultimately chose protection. Allow artists to license their works for a set amount of time, and then release those works into the public domain for people to use as they see fit.
In the years since, Congress has extended the terms of copyright protection many times. In 1790, the term was 14 years; since 1998, it’s been the author’s life plus 70 years. These extensions derive, broadly, from three changes, explains Harris: increasing lifespans, the US keeping in line with the rest of the world’s copyright protections—the country adopted the Berne Convention’s guidelines in 1989—and technological changes. In the 1790s, copying a book required a duplicating machine; things are different now. Each time the copying and distribution of art shifts—from video tape recorders to generative AI—copyright likely needs to be reconsidered.
“The real trick is trying to figure out where that balance is, where we provide just the right amount of incentives for people to create,” Harris says. “If it’s too much, then we’re rewarding copyright owners; if it’s not enough, then we’re not going to be able to get enough works created that then fall into the public domain.”
Disney has had a hand in these extensions. The company successfully lobbied in favor of the Copyright Act of 1976 as Steamboat Willy, the first Mickey Mouse cartoon, was about to enter the public domain. The current life-plus-70-years term comes from the Sonny Bono Copyright Term Extension Act, which the company also backed.
People tend to forget how much culture rests on reinterpretations of iconic characters. Perhaps the best example is Bram Stoker’s Dracula, who through films, novels, and games has cemented the vampire as a symbol through which readers and audiences understand themselves. But one of the greatest works he inspired was also a notorious violation of copyright: Nosferatu. After F. W. Murnau released the 1922 German Expressionist vampire film, Stoker’s estate sued. The author published Dracula in 1897, and the law in Germany, where Murnau produced the movie, stipulated that novels be protected by copyright for 50 years. A German court sided with the Stoker estate, and, according to some accounts, ordered all prints of the film destroyed. But Nosferatu had already made its way to the US, where the book was in the public domain. Copies of the film spread, and vampire lore flourished.
The Steamboat Willie version of Mickey Mouse is due to enter the public domain in 2024. Victoria Schwartz, professor of law at Pepperdine’s Caruso School of Law, explains that the trademark Disney holds on the Steamboat Mickey might give the company some coverage when copyright law no longer can. Copyrights expire, but trademark protections can last indefinitely, providing their holders keep their registration up-to-date.
“If you watch any Disney movies recently (I have a toddler, so we watch a lot), you will notice that they open the film with a small clip from Steamboat Willie,” she writes over email. This keeps that version of Mickey connected to Disney in the public’s mind. Still, this protection is more limited: People will still be able to use that first Mickey Mouse, as long as their interpretation cannot be construed to be Disney’s. (See also: Frake-Waterfield and his Micheal Myers-sized Pooh.)
Mickey, and Disney, aren’t the only ones facing a ticking clock. Bugs Bunny, Batman, and Superman—all currently held by Warner Bros.—will pass into the public domain in the coming decades. But early Superman could only “leap tall buildings in a single bound,” not fly. A legal battle is likely forthcoming. “Aspects of the Bugs Bunny, Batman, and Superman characters that were added later would remain protected, and if someone took those aspects I expect [Warner Bros.] would sue,” says Schwartz.
Eventually, though, these works need to enter the public domain. If their original makers are no longer benefiting, it’s in the public interest to let other creators use them. “If you think about the original term, it was to provide incentives for authors. So the author could enjoy that protection for 14 years,” says Harris. “Now we’re saying even after the entire lifespan of the author, we’re going to give an additional 70 years.” That has got to be long enough, he says.
Fifty years from now, scores of popular characters should all look very different, just as Pooh may for those who have seen Blood and Honey. The inordinate length of modern copyright protection has ensured that no character created in this lifetime will pass into the public domain, but the stream of expiring copyrights at least lets artists iterate on the work of previous generations. “It becomes so much more of a rich world for budding filmmakers, and budding artists, to be able to leverage and use these very well-known IPs and characters to build up their career,” says Frake-Waterfield.
Blood and Honey cost less than $100,000 to make, but it brought in more than $4 million in its limited release. Additional cash, Frake-Waterfield hopes, will allow him to create higher-quality future installments—flaunting bloodier VFX—in his public domain cinematic universe. And he’d like to work with characters still covered by copyright too. “Teenage Mutant Ninja Turtles, they’re these half-human, half-turtles who live in the sewer.” he says. “You can easily twist that into horror.” But first: Bambi: The Reckoning.
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Will Bedingfield