Never Neverland: Peter Pan and perpetual copyright

Dr Matthew Rimmer n the case of Emily Somma v Great European Union. However, the Hospital the United States. Ormond Street Elospital for Sick Chil­ refused her request to publish the book in Somma also sought a declaration dren, there has been much debate over the United Kingdom, the European Com­ that that her book After the rain did not Iwhether Peter Pan has passed into the munity, and the United States. The trustees infringe the work of JM Barrie. Her law­ public domain. asserted: 'The play by JM Barrie is in full yers were confident that the book was In 1902, JM Barrie first invented the copyright in the United States until 2023.' protected by the defence of fair use under puckish, fictional character of Peter Pan Furthermore, the trustees maintained: 'Un­ copyright law in the United States: in his book The little white bird. In 1904, authorised works, which contain the Pe­ JM Barrie adapted his story into a stage ter Pan characters and elements from the We believe there would be a very play called P eter Pan, or The boy who original work, are not adaptable in the strong argument that Emily would wouldn't grow up. The play was a great United States, without the permission of be free to publish her story even if success, and was adapted into a silent the Hospital, being protected by the laws the copyright had not expired. The movie by Paramount pictures in 1923. of trademark and unfair competition.' precedent for this claim is, as the In 1929, JM Barrie assigned the copy­ With the help of the Stanford Center question suggests, the The wind right in the cycle of Peter Pan works to for Law and the Internet, Emily Somma done gone case. In that case, Alice the Great Ormond Street Hospital for filed a pre-emptive lawsuit in the Federal Randall was permitted to write a Sick Children — a children's hospital and Court of California against the Hospital story based on the novel Gone with medical charity. He confirmed the Hos­ to protect her derivative work, A fte r the the wind despite the fact that Gone pital's ownership of this copyright in his rain. She sought a declaration that copy­ with the wind was s till under copy­ last will and testament in 1937. In 1939, right had expired in JM Barrie's books in right. The Court held that a critical the Hospital licensed the animated film the United States, and the characters of re-use o f that story was fair use. So rights to Disney. In 1953, Disney released Peter Pan, Tinker Bell, Captain Hook, and too could one argue that Emily's sto­ an animated film version of Peter Pan. It Wendy were in the public domain. ry is a fair use o fthe Barrie stories. It too builds upon the Peter Pan story has released the film at regular intervals The copyright in the works featuring since that first production. In 1990, Steven Peter Pan has been revived in a number in a way that questions the original Spielberg released an adaptation of the Pe­ of jurisdictions. In the United Kingdom, author's point. ter Pan story called Hook. In 2002, Disney the Parliament granted a perpetual copy­ Somma sought a declaration that her released the film Return to Neverland. right on the works of the Peter Pan cycle. activities in publishing A fte r the rain \NO\e In 2002, the Canadian children's nov­ Section 301 of the Copyright, Designs and protected by the First A m endm ent. elist J Emily Somma published the novel Patents Act 1988 (UK) provides: Furthermore, Somma sought a dec­ After the rain: a new adventure for Peter The provisions o f Schedule 6 have laration that the Great Ormond Hospital Pan. She sought to explore the themes of effect for conferring on trustees for could not claim any trademark in the the classic story in a modern context: the benefit o f the Hospital for Sick character Peter Pan, whether under the O f all o f the famous children's sto­ Children, Great Ormond Street, Lon­ Lanham A c t or common law. She also ries coming from British authors don, a right to a royalty in respect o f sought a judicial determination that she in the late nineteenth and early the public performance, commercial was not infringing any rights in trademark twentieth century, Peter Pan is the publication, broadcasting or inclu­ or unfair competition held by the Great one that jumps out as very clearly sion in a cable programme service Ormond Hospital. having been written for adults: On o f the pla y P eter Pan' b y S ir lames In response, the hospital argued that these magic shores children at play Matthew Barrie, or o f any adapta­ the Federal Court in California had no are forever beaching their coracles. tion o f that work, notwithstanding general or specific jurisdiction in this dis­ We too have been there; we can still that copyright in the work expired pute between an English hospital and a hear the sound o f the surf, though on 31 December 1987. Canadian author. While admitting that it we shall land no more. Furthermore, in other jurisdictions, had done business with California movie Somma's book concerns a 21 st centu­ the copyright in the works of Peter Pan makers, the hospital denied doing busi­ ry girl, called Crystal McFarland, w ho res­ was revived. In 1996, the European Un­ ness /'^California. The hospital also main­ cues Peter Pan from perpetual childhood tained that the matter was not ripe for a ion retrospectively extended the term of in Neverland. Her novel takes a much declaration of judicial rights. copyright protection for natural authors more positive attitude to the opportunities for life plus 70 years. Similarly, the United In a curious twist, in 2004, the hospi­ of adulthood than the original texts. tal also objected to a Peter Pan 'prequel' States Congress passed the Son n y B on o Somma published the novel A fte r the — entitled Peter and the Starcatchers — Copyright Term Extension Act 1 998 (US), rain: a new adventure for Peter Pan with published by Hyperion, a Disney subsidi­ Daisy Books in Canada, a jurisdiction in and retrospectively extended the term of ary. The book was written by Dave Barry which the copyright in the Peter Pan works copyright protection to natural authors for and Ridley Pearson. The hospital argued had expired. She sought permission from life plus 70 years. The key question seems that the unauthorised book infringed its the Great Ormond Hospital to publish to be whether the Peter Pan works are eli­ copyright in Peter Pan. A spokesman for the novel in the United States and the gible for this copyright term extension in the Hospital said: ')M Barrie gave the

8 /// C W * ' December 2004 copyright in Peter Pan to the hospital in The quotes are something like less vation of the public domain and the in­ 1929 and since then the royalties have than 400 words out o f20 000; and tellectual commons. As the lawyers for been a significant but confidential source / actually feel that M r Barrie himself Emily Somma observe: of income for the hospital. JM Barrie died would approve, but he's dead and JM Barrie almost certainly took the in 1937 so copyright in the European Un­ it would be some unknown person name 'Pan' from a magical figure ion runs until 2007 and until 2023 in the who administers the estate making in ancient Greek Mythology, and the decision. What if they, just per­ United States.' By contrast, Disney main­ aspects o f the Peter Pan character tained: The copyright to the JM Barrie sto­ sonally, didn't happen to like what may have been based on Puck ries expired in the United States prior to / was doing. from Shakespeare's A M id su m ­ 1998, the effective date of the US C opy­ Fortunately for Spencer, the work mer Night's Dream, Robin Hood, right Extension A ct, and thus were ineligi­ of Peter Pan had fallen into the public and other public domain fictional ble for any extension of their term.' domain in Australia. The Federal Gov­ characters. Barrie's pirates bor­ There have been echoes of such dis­ ernment has since extended the term rowed many names and character­ putes over Peter Pan in Australia. In 1996, of co p y rig h t p ro tec tio n in 2 0 0 4 to life istics from real and literary pirates Australian author, Beth Spencer, published of the author plus 70 years. However, o f his day. Emily should be as free How to conceive o f a girl. the Australian Parliament decided that the novel, She to build on the past with her own used the fable of Peter Pan to explore so­ such an extension would not have a ret­ creativity. cial attitudes towards femininity, repro­ rospective effect. It is inappropriate that Peter Pan duction, birth and conception. Spencer The case of Peter Pan provides a should have perpetual copyright protec­ was worried that particular copyright cautionary tale about the dangers of tion in light of the character's origins. owners would refuse to give permission copyright term extension. There is a There should be freedom for creative for the use of her work, because of the need to resist the special pleading of artists to use, adapt, and transform sto­ creative and critical nature of the subject copyright owners. It is extraordinary that ries, plots and characters that are de­ matter. She commented: the United Kingdom Parliament should rived from the public domain. In a novella which is about a third have awarded perpetual copyright pro­ of the book, I've used the occa­ tection to stock characters. It is troubling D r M atthew Rim m er is a lecturer at the sional brief quote from Peter Pan that the European Union, the United Faculty o f Law at the Australian N ational as a structuring p rin cip le — little States, and Australia have dramatically University, and a m em ber o f the ALIA typographical stepping stones or extended the term of copyright protec­ Copyright and Intellectual Property punctuation points, if you like... tion. There is a need for greater conser­ Advisory Croup.

December 2004 /// C H t /<■ 9