The “Public Good” of the Public Domain: Now You Can Watch Winnie the Pooh Decapitate a Girl with an Axe

Stephen Carlisle January 27, 2023

Every year on January 1^st, various copyright skeptics assemble to sing the praises of works going into the public domain, and indeed call for celebrations! Typical is this from the Electronic Frontier Foundation:

“Every January 1st, we celebrate the creative works that become free to use and adapt as their copyright expires… [M]any thousands of cultural artifacts from 1927 and earlier can now be used by artists, educators, and businesses without fear of massive copyright liability…” ¹

And this from the Duke University Center for the Study of the Public Domain:

“The public domain is also a wellspring for creativity. The whole point of copyright is to promote creativity, and the public domain plays a central role in doing so. Copyright law gives authors important rights that encourage creativity and distribution—this is a very good thing. But it also ensures that those rights last for a “limited time,” so that when they expire, works go into the public domain, where future authors can legally build on the past—reimagining the books, making them into films, adapting the songs and movies. That’s a good thing too!” ²

So what do we – “the public” – get for this event which deserves so much celebration?

Not much.

First up “Winnie the Pooh: Blood and Honey.” As a result of Winnie The Pooh going into the public domain in the United States in 2022 ³ (he has been in the public domain in Canada since 2007 ⁴), we are now treated to a horror movie starring Winnie the Pooh and Piglet. There you can thrill to the sight of Winnie the Pooh in a swimming pool, decapitating a screaming young girl with an axe, and knocking out a bikini clad girl (hey, it’s a horror movie) with chloroform and then running over her head with a car. ⁵

Feeling culturally enriched yet? Feeling a need to “celebrate”?

Here’s what I said last year, when Pooh went into the public domain:

“[T]here’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.” ⁶

So what does “Winnie the Pooh: Blood and Honey” say about Pooh and Piglet as characters? What insights are revealed about their nature and personalities? Anything?

More likely “Blood and Honey” mines the well-worn horror tradition of making a child’s plaything malevolent, like “Chucky” from the “Child’s Play” series of movies or more recently the AI robot of “M3gan.”

And even more likely is that the selection of Pooh as your main character is due to the fact that he is already internationally famous, thanks in no small part to – ahem – The Walt Disney Company. This way your project attracts an instant wave of publicity that money can’t buy, and indeed does not have to be bought. This from USAToday:

“Will the righteous outcry stop the release of ‘Blood and Honey’? Not a chance. The film’s producers are reaping the benefits of a massive publicity windfall. [Director Rhys] Frake-Waterfield told Variety that the filmmakers are rushing to cash in while the attention is there.

‘Because of all the press and stuff, we’re just going to start expediting the edit and getting it through post-production as fast as we can,’ he said, vowing to make ‘sure it’s still good. It’s gonna be a high priority.’” ⁷

So, no need to spend the time or effort thinking up the new Michael Myers, Norman Bates, The Predator, Jason Vorhees or Freddy Kreuger. Just pluck a well-known character from the public domain and your work is done for you! And don’t think that other horror producers haven’t taken notice. Reputed to be in the works are slasher movies starring The Grinch (referred to as “The Mean One”) and Bambi.

“Director Scott Jeffrey…is working on a slasher version of Felix Salten’s nearly 100-year-old ‘Bambi’ novel. Jeffrey promises an ‘incredibly dark retelling’ of the tale. ‘Bambi will be a vicious killing machine that lurks in the wilderness,’ he tells Dread Central. ‘Prepare for Bambi on rabies’” ⁸

So, what is Disney to do?

Not much.

Pooh and Bambi are unquestionably in the public domain. But as I noted last year, Winnie the Pooh is also a trademark. ⁹ The Pooh of “Blood and Honey” does resemble the Disney Pooh (perhaps it’s a mask a’la Michael Myers?) but is a lot taller, and wears a bloodied lumberjack shirt instead of the short red sweater. And clearly, Disney would not have anything to do with a “slasher version” of Pooh.

But would the public think so?

When I watched the trailer for “Blood and Honey” on YouTube it was immediately followed (without a hint of algorithmic irony) by an advertisement for the Disney+ streaming service. In addition, a colleague who has YouTube premium (so no pre, mid, or post video ads) reported this ad ran beneath the “Blood and Honey” trailer, and favored me with a screenshot. (h/t to Franklin Graves).

There is a legal concept known as “trademark dilution,” which posits the following:

“In law, dilution refers to the use of a trademark or trade name in commerce that is sufficiently similar to a famous mark that by association it confuses or diminishes the public’s perception of the famous mark….

Dilution consists of two principal harms: blurring and tarnishment.

Dilution by blurring occurs when the distinctiveness of a famous mark is impaired by association with another similar mark or trade name. (citation omitted).

Dilution by tarnishment occurs when the reputation of a famous mark is harmed through association with another similar mark or trade name.” (citation omitted). ¹⁰

Would Pooh decapitating a girl with an axe “diminish the public’s perception of the famous mark”? Perhaps it does.

For now, Disney is very quiet on this front.

But enough of homicidal toy bears. What of more scholarly works?

Much ado was made about the release of a new novel by Michael Farris Smith titled “Nick” which re-told the “The Great Gatsby” from the perspective of Nick Carraway. ¹¹ Less ado was made about “The Gay Gatsby” and “The Great Gatsby” Undead (Zombie Edition). ¹² One commentator on Gatsby rewrites had this to say:

“[A]ny kind of rewrite of a famous novel is always going to be a lesser novel because it depends on fairly intimate knowledge of the original to be appreciated. To do that is to aspire to be at best a third nipple or eleventh finger on another work, and really none of these rewrites ever attain even that position because they are quickly forgotten as times and mores change, while the work they are based on have usually survived several changes in times and mores already.” ¹³

And there was this:

“I’ve never understood the need to piggyback off a famous novelist’s work to write what basically amounts to fan fiction.  Other than it being a way to get published when publishers won’t touch your original work.  And I fail to see the need for a feminist twist on The Great Gatsby.” ¹⁴

And this:

“Any one who wants to tell people how things really are: don’t “rewrite” an established classic, don’t ride on the coat-tails of others. Create your own.” ¹⁵

And finally this:

“If you enjoy these, you’ll love my Beethoven’s 10th Symphony I’ve just released in the style, maybe, of Beethoven if he’d had a kazoo.” ¹⁶

Putting aside the snark of these commentators. There is nothing inherently wrong with using source material from the public domain. The question is what do you do with it? Do you actually “build” on the work? Or do you merely use the famous work as an attention getting device?

“West Side Story” is a reworking of Shakespeare’s “Romeo and Juliet.” But there is no mistaking the brilliance of the adaptation, which stands alone as its own individual work.

“Romeo and Juliet” also found its way into Disney’s “Pocahontas.” And into “Avatar.” And there is more than just a bit of “Hamlet” in “The Lion King.”

There have been numerous retellings of the legend of King Arthur and the Knights of the Round Table. But needless to say, John Boorman’s “Excalibur” is WAY different in tone and style than Lerner and Lowe’s “Camelot” and certainly “Disney’s “The Sword and the Stone.”

So, there is nothing inherently precious about works going into the public domain that deserves celebrations. Because you’re going to get a lot of dross.

As smartphone technology increased, leading to better and better pictures and video, this joke circulated around my movie-making friends:

“Wow. Now anyone can make a movie. Problem is, now anyone can make a movie.”

The same can be said about the public domain. The problem is now anyone can do it.