“I wonder what’s going to happen exciting today?”

Winnie the Pooh, A.A. Milne, 1926

Public Domain Day 2022

On January 1, 2022, that “exciting” event was Public Domain Day. This is the day every year when the copyright of creative works run out and they enter the public domain.

In 2021, we saw The Great Gatsby revival. In 2022, expect to see a whole lot of Winnie the Pooh (A. A. Milne).

Differences Between Copyright and Trademark

Copyrights and trademarks are legal protections that safeguard your intellectual property. As long as they are in place, no one can impinge on your creative work or use your ideas to their own ends. When these protections expire, however, they become fair game for the public to use. They are similar to plagiarism because they involve using someone else’s work without permission.

Copyrights are intended for creative works, including digital content, music, film, literary works, performing arts, photographs, and visual arts. U.S. copyright laws have changed over the years. As it stands today, creative works from 1923 to 1977 have copyrights that last 95 years. Creative works after 1977 have copyrights that last 70 years after the creator passes away. You can choose to register a copyright but it is not required that you do so.

Trademarks, on the other hand, are used for commercial purposes. A trademark is a design, phrase, word, or symbol used to represent a party’s products or services. This includes brand names, logos, and slogans. In the United States, trademarks are registered once and can last indefinitely as long as you file renewal applications every 10 years.

The catch is you cannot have a trademark simply to have one. You have to actively use it or it will be considered abandoned. To this end, you will be required to file a Declaration of Use (or Excusable Nonuse) in conjunction with your Renewal Application every 10 years. This will require photographic evidence of your trademark in use as well as evidence that trademarked products are available for sale.

The Winnie the Pooh Controversy

You will hear a lot about Winnie the Pooh this year. That’s because the copyright for A. A. Milne’s story has run out but Disney continues to have a trademark on the character franchise. With that in mind, are you really free to get creative with the silly old bear?

Winnie the Pooh introduced a number of classic characters. Not only did we come to love Christopher Robin, Eeyore, and Piglet, we also met Kanga, Roo, Piglet, Owl, and Rabbit. Tigger would not cross our paths until The House at Pooh Corner in 1928.

Copyright protections changed hands over the years. A. A. Milne transferred rights to Stephen Slesinger in 1930. When he passed away in 1953, his wife Shirley Slesinger Lasswell took the lead. In 1961, she assigned those rights to Disney in exchange for royalties. In 1983, Slesinger and Disney rewrote the agreement. Disney went on to register a number of Pooh-related trademarks.

Unfortunately, disagreements persisted about who held the actual rights to Winnie the Pooh. Slesinger sued Disney in 1991 and 2006, first about underpayment of royalties and second about infringement on copyrights and trademarks. The Slesinger family understood their agreement to mean that rights were only licensed to Disney and they retained overall rights. The court saw it differently, noting that when the rights were “assigned”, they were transferred altogether. Watch the language of your contracts!

Copyright and Trademark Issues

While A. A. Milne’s story is now in the public domain, Disney has its own copyrights in play. Disney’s illustrations are very different from those of the original illustrator, E. H. Shepard. Disney’s likeness of Pooh and his friends will be in copyright for a long time, especially when you consider their first feature, Winnie the Pooh and the Honey Tree, was released in 1966.

You can make use of A. A. Milne’s creation but your options are limited. You can refer to original text and illustrations. Steer clear of any likeness to the Disney version of these characters though and make sure you are not referencing any reiterations of any stories that came from Disney.

Unfortunately, it gets tricky in terms of trademarks. Disney has a lot of them and they also have a lot of lawyers. It could get difficult to merchandise anything you create based on these characters. You would have to look closely at the specific trademarks, but trust me, Disney covers just about everything you can imagine.

Violating trademark law means you used a trademark that confused your goods with those of the original trademark owner. Disney trademarked the names and images of these characters. Tread lightly. Entering the public domain does not always make creative work a free for all.