From Fair to Free Use
An explanation of the trend of popular characters becoming public domain and why people are making horror content from it.
From Mickey Mouse to Winnie the Pooh, more and more iconic characters have entered the public domain in recent years. But what does that mean exactly? The U.S. Copyright Office defines public domain as “...a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression.” So, if you always wanted to use the big mouse in your fanfiction, now you can. While copyright lasts for the author’s lifespan, plus 70 years, because of how old these works are, they’re now becoming part of the public domain.
The craziest part about this trend is how so many characters will become and how many already are in the public domain. Superman, Batman, Donald Duck, and Wonder Woman are all entering the public domain by 2037.
However, there’s one big limitation to using these characters. Creators can only use them as they were originally made. They can’t use modern Mickey Mouse with white gloves, red shorts, and yellow shoes, but the all-black and white Steamboat Willie iteration is up for free use. This precise limitation was the main concern for creators while working with Winnie the Pooh in “Winnie the Pooh: Blood and Honey.”
“We knew there was this line between that, and we knew what their copyright was and what they’ve done,” said Rhys Frake-Waterfield, the writer and director of “Winnie the Pooh: Blood and Honey”. “So we did as much as we could to make sure [the film] was only based on the 1926 version of it.”
While “Winnie the Pooh: Blood and Honey” was never going to be a major blockbuster with its cheesy slasher plot, poorly written characters, and lack of horror, the movie ended up making around $5 million from a $100,000 budget. The main reason why this F-tier movie earned 50 times its budget is mainly because of the absurdity of the concept.
And that same absurd concept is what led to other cheesy slasher movies with public domain characters, like “Bambi: The Reckoning”, “Peter Pan: Neverland Nightmare”, and “Mickey’s Mousetrap”, to be put into production. Even a sequel is being made for “Winnie the Pooh: Blood and Honey”. If this trend continues, we may see a horror movie based around Superman or even Donald Duck.
However, one potential solution to these copyright expirations is trademarking. A trademark essentially protects words, phrases, symbols, and/or designs that are synonymous with a good or service. While Disney and Warner Bros could trademark parts of their iconic characters, like Mickey Mouse’s name or Superman’s “S”, this won’t fully protect them.
“Trademark law only prohibits the use of a trademarked character if doing so is likely to cause confusion, or to cause mistake, or to deceive consumers about the source or sponsorship of the new product,” said Jennifer Jenkins, director of Duke University Center for the Study of Public Domain.
Unless a project is something that Disney or Warner Bros would do with their characters, creators will be safe. Creators will keep making horror movies, or any other weird project with these characters, not necessarily because they should, but just because they can.