“Oh Bother!” said Pooh. “I’ve Gone into the Public Domain” “So Why Are People Celebrating?” asked Piglet

Stephen Carlisle January 7, 2022

Way back when in 2014, when I first started this blog, I wrote my most popular post, about Mickey Mouse going into the public domain. ¹ Since that time, it has been read nearly 170,000 times. In that post, I noted that the first real dust-up over public domain rights would involve Winnie the Pooh, who would go into the public domain on January 1, 2022.

That event has now occurred. The first Pooh book, “Winnie the Pooh,” has gone into the public domain, but not the subsequent books, including “The House at Pooh Corner,” ² which include the first appearance of the character Tigger. ³

So what’s the big deal?

Winnie the Pooh is one of the most profitable characters in the entertainment business. With an estimated all time revenue of over $80 billion, Pooh ties Mickey Mouse for third on the list and trails only Pokemon and Hello Kitty. ⁴

But now, the anti-copyright crowd is falling all over themselves to “celebrate” this occurrence.

Now Pooh, along with others, have “shed their copyright and made their proper full [sic] and proper entrance into society.” ⁵

Huh? What kind of nonsense is that? A character that has generated $80 billion in revenue has never had a “proper entrance into society”? Has Disney shown any hesitation about putting out numerous Winne the Pooh properties into public circulation?

And what is there to celebrate about this? It’s sort of like celebrating that a co-worker has died so that you can stake your claim to his corner office.

All of the reasons trotted out are the same tired rationales that have been rejected by the Supreme Court, Congress, or are simply not true. To wit:

“Empirical studies have shown that public domain books are less expensive, available in more editions and formats, and more likely to be in print.” ⁶

Really? Here’s a screen shot from Amazon of the book we are discussing, taken January 4, after it has entered the public domain.

So $19.95 for a book that’s in the public domain. Some savings. But I guess the real savings go to the publisher, who no longer has to pay Milne’s estate any royalties.

“For the vast majority—probably 99%—of works from 1926, no copyright holder financially benefited from continued copyright.”… A Congressional Research Service report indicated that only around 2% of copyrights between 55 and 75 years old retain commercial value. After 75 years, that percentage is even lower. ⁷

This argument was considered and rejected by the Supreme Court in Eldred v.Ashcroft. ⁸ Why is this still being brought up?

“As it happens, however, this massive release isn’t something entirely worth celebrating. Instead, it’s a pointer to the sheer absurdity of American copyright law, which long ago came under the thumb of the entertainment industry and distant heirs of artists determined to preserve what is essentially a windfall.” ⁹

This is simply not the case, as pointed out by my previous blog post on the subject. ¹⁰ The Sonny Bono Term Extension Act was passed out of Congress on a voice vote in the House and by unanimous consent in the Senate. When the bills were reconciled in the House it was again passed by voice vote.

“A key factor in the SBCTEA’s passage was a 1993 European Union (EU) directive instructing EU members to establish a baseline copyright term of life plus 70 years and to deny this longer term to the works of any non-EU country whose laws did not secure the same extended term. By extending the baseline United States copyright term, Congress sought to ensure that American authors would receive the same copyright protection in Europe as their European counterparts. While it may satisfy the cynical nature of anti-copyright activists to paint long copyright terms as a sell out to Hollywood, the real driving force for longer copyright terms comes from Europe, not Hollywood, and the need for the United States to protect its copyrights abroad requires the adherence to treaties that mandate long copyright terms.” ¹¹

And then there’s this doozy:

“‘There are many ‘firsts’ this year,’ says Jennifer Jenkins, director of Duke’s Center for the Study of the Public Domain, ‘most notably the first time sound recordings have entered the public domain, with some 400,000 recordings from before 1923 becoming free to sample, remix, or use in a soundtrack.’” ¹²

Except for the fact that, until very recently, no sound recording from 1923 or before was protected by copyright at all. All of them were already essentially in the “public domain” since no federal copyright could attached to them. Only sound recordings recorded and fixed after February 15, 1972 qualified for federal copyright protection. ¹³ If such a pre-1972 recording was protected at all, it would have been under State law, not Federal copyright law, and such protections were wildly inconsistent. It was only after the passage of the Music Modernization Act were pre-1923 sound recordings given Federal copyright protection, and only for a period of three years. That’s right, three years. Some windfall for the public.

Let’s also mention that any song that was captured on a sound recording made on or before 1923 was already in the public domain. So anyone could make a sound recording using that song, and make it sound as identical as possible to the original sound recording without violating copyright. ¹⁴

It’s not too hard to see the rhetorical sleight of hand that’s going on here.

And then there’s this:

“It’s proper to keep in mind that copyright law was not designed originally to keep cash flow running for future generations of a creator’s family. The idea was always to preserve an incentive for creators to create, by guaranteeing that they would be able to enjoy the fruits of their own labor for a set period.” ¹⁵

Really? Let’s take the case of Stieg Larsson. He is the Swedish author of the “Millennium Series” which include The Girl With the Dragon Tattoo, The Girl Who Played with Fire and The Girl Who Kicked the Hornet’s Nest, which was the best-selling book in the United States in 2010. ¹⁶ By the end of 2015, his books had sold 80 million copies around the world. ¹⁷

Too bad he died in 2005.

That’s right, each of these best-selling books was published after he died.

So, since copyright was not designed to “keep cash flow running for future generations,” Larssen’s family should receive nothing? On 80 million books sold and numerous film adaptations?

So there’s really nothing to “celebrate” about a work going into the public domain, especially where a work doesn’t get published until shortly before the author’s death, like Kurt Cobain or after the author’s death, like Ian Fleming.

And there’s no reason to celebrate what is sure to come, a bunch of poorly written Winnie the Pooh knockoffs that will have none of the charm and whimsy of the originals, which made them so popular in the first place.

No, the thing to celebrate is a system that rewards the efforts of authors that give us memorable stories and characters like Lisbeth Salander or Winnie the Pooh.