Winnie the Pooh and his friends from the Hundred Acre Wood are some of the most popular of all beloved children’s characters. They are also some of the most commercially valuable.
Since Disney acquired the rights to the original Pooh, the bear with a rumbly tummy has starred in feature films, direct-to-tv videos, and television shows. You can go to Walt Disney World and ride on Pooh-themed rides. And Pooh merchandise — t-shirts, mugs, children’s toys, jewelry, Halloween costumes, to name just a few examples — is everywhere. All in all, Pooh and his friends generate an estimated $3 billion to $6 billion for Disney every year.
Maybe you want to get on the Pooh bandwagon and sell your own Pooh stuff. You used to need Disney’s permission, and even if they gave it to you, you’d have to pay them for it. Well, within certain limits, not anymore.
Winnie the Pooh and Copyright Law
A.A. Milne came up with the idea of a talking yellow bear in a 1924 poem. But Winnie the Pooh as we know him first appeared in 1926 in Winnie-the-Pooh. In that book, he was joined by his friends, Rabbit, Piglet, Kanga, Roo, Owl, and Eeyore. Tigger didn’t appear until the 1928 sequel, The House at Pooh Corner. That was 96 and 94 years ago, respectively.
Those dates are important. Under federal copyright law, you get legal rights in literary, artistic, musical, dramatic, and certain other intellectual works you create. Those rights last for a limited time. That law has changed over time, but now it’s generally the life of the author plus 70 years. There are other terms, such as 95 years from the date of publication and 120 years if the author is anonymous, uses a pseudonym, or is hired to create the work (which is called a “work for hire”).
Once the term expires, the work becomes part of the public domain. The public owns the work, not its creator, which essentially means people can do with it what they want. For example, they can write stories using the characters, they can make movies about them, they can paint pictures of them, and they can sell stuff they make using them.
For Pooh and his friends (except Tigger), the applicable 95-year term expired in January 2022 (for Tigger it’s January 2024). Winnie-the-Pooh is now part of the public domain and the original work — the story, the setting, the characters, etc. — can be used by anyone for virtually any purpose.
One rather unsettling adaptation is the upcoming horror film Winnie the Pooh: Blood and Honey. In it, Pooh and his friends are murderous, feral maniacs who vow revenge against Christopher Robin for abandoning them. Not to everyone’s taste, perhaps.
But not so fast. You still need to be careful. The copyrights to Pooh and most of his friends may have expired, but that doesn’t mean that Disney still can’t come after you if you violate their trademarks.
A trademark includes a name, word, symbol, or device used in commerce to distinguish the goods of one manufacturer from those of another and to indicate the source of those goods. A copyright protects a creative work; a trademark protects a brand.
You don’t have to register a trademark with the U.S. Patent and Trademark Office (USPTO) to get one. You just need to be the first one to use it in commerce. However, most people do register their marks. Registration comes with advantages, chief among them being that the law will presume that you own the mark nationwide. That makes it easier to sue someone if they use your mark without your permission.
One big difference between copyrights and trademarks is that trademarks can be renewed. And there’s no limit to the number of times you can renew one. If you stay on top of your renewal deadlines, your trademark could conceivably last forever.
Disney has been careful about renewing the Pooh-related trademarks it has. Perhaps the most recognizable is Pooh’s red shirt.
A little history here.
Before Disney bought them in 1961, American producer Stephen Slesinger owned the merchandising rights to all-things-Pooh in the U.S. and Canada. Pooh’s red shirt was first added in 1932 for an RCA Victor picture record. That created a trademark for the red shirt. By the 1940s, plush dolls with Pooh in his signature red shirt were being produced. When Disney acquired the merchandising rights, their animators decided to keep the trademarked red shirt. And Disney has been renewing that trademark ever since.
So if you want to make Winnie the Pooh stuff, you can. Pooh, Piglet, Rabbit, Eeyore, Kanga, Roo, and Owl are now part of the public domain. You still have to wait another two years to start selling your Tigger t-shirts. But if you don’t want to get sued, make sure your Pooh-merch isn’t violating one of Disney’s trademarks.
Fortunately, there’s a relatively easy way to check. You can search the USPTO’s Trademark Electronic Search System (TESS) online. But given the stakes involved, you may want to have an experienced trademark lawyer run the search for you, just to be safe.
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