Filmmaker Rhys Frake-Waterfield’s directorial debut—released on February 15—is a Winnie-the-Pooh story unlike any other. It begins when Christopher Robin, no longer a boy in Mary Janes but a cardigan-wearing university graduate, returns to the Hundred Acre Wood to introduce his fiancée to his childhood friends. But the friends have fared poorly. Without him to provide for them, they’ve turned hungry and feral. Piglet is now tusked and fearsome, like a full-sized boar. Eeyore has had his pessimistic worldview cruelly vindicated: we see the headstone of his makeshift grave. And Pooh, it seems, has lost interest in his old pursuits, like writing doggerel poetry or throwing sticks in a river. These days, he’d rather kill. The film is called Winnie-the-Pooh: Blood and Honey, and it’s a slasher.
Within the Pooh canon, the movie stands out, but conceptually, it’s pretty derivative. The original slasher classics from the ’70s—Black Christmas, The Texas Chainsaw Massacre, and Halloween—were atmospheric and meandering, concerned less with violence than with the world-destroying dread induced by the threat of violence. Since then, few slashers have measured up. In short order, the genre became consumed by the quest for novelty, with producers dreaming up new gimmicks—a killer in a hockey mask, a killer in a slicker, a killer disguised as a wax dummy—and then finding ever-more-garish ways to brutalize victims. (In the third instalment of the Final Destination series, two characters are cooked to death in tanning beds, because sooner or later someone had to put that on film.)
Blood and Honey fits right into this tradition. In the trailer, we see hogtied victims and Piglet smashing heads with a sledgehammer. Judging from the promotional material, the film looks so familiar it could’ve been released at any point in the past forty years. Except, in one important respect, it couldn’t have. Had Frake-Waterfield put out his movie before 2022, he might have been sued for copyright infringement.
Before Winnie-the-Pooh was anything else, he was the intellectual property of the English writer A. A. Milne, who invented the character after seeing a bear from Ontario in a London zoo. But fourteen months ago, Milne’s version of Pooh entered the US public domain. The expiration of a copyright is one of those decisive, all-or-nothing events, like the moment a sledgehammer hits your cranium. Suddenly, pretty much everything in Milne’s first Pooh collection—the characters, the stories, the line drawings by E. H. Shepard—was up for grabs. (The same copyright expired in Canada back in 2007.)
Frake-Waterfield clearly revels in his newfound freedom. He dressed his actor in a bear mask that kind of resembles Pooh, except it’s bloated, contorted, and dripping with blood and menace. He filmed near Ashdown Forest, the real-life inspiration for Milne’s Hundred Acre Wood. And in an interview for the website Dread Central, he reassured horror fans that the killers are “definitely Pooh and Piglet.”
Unsurprisingly, the film has its share of detractors. Alec Dent, culture editor for The Dispatch, characterizes it as a “monstrous reinterpretation” and “a transgression against innocence” itself. “The fact that this is being done to the Winnie-the-Pooh character at all is saddening,” he writes. “The fact that it’s being done with the original stories is even worse.”
Fair enough. Nobody should have to say nice things about the art they find distasteful. I’ll admit that I’m not much keener on the idea of Blood and Honey than Dent is: I emailed the producers to ask if I could see the movie in advance of the release date and was mildly relieved when they told me I couldn’t. But one doesn’t have to like this film to appreciate what it does—the way it makes space for a certain kind of uninhibited creative freedom, which has long been imperilled in our culture and is still imperilled today.
Frake-Waterfield is involved in forthcoming slasher adaptations of Bambi and Peter Pan—versions of both stories are now in the public domain—as well as a Blood and Honey follow-up. The copyright for Tigger, who makes his first appearance in Milne’s second Pooh book, will expire next year, presumably in time for the character to maul and maim his way through a lurid Frake-Waterfield sequel. I doubt I’ll be seeing that movie or any of the others. But I’m grateful to live in a world in which they can still be made.
It’s a cliché, albeit an accurate one, that every movie is of its time. This is true in the straightforward sense that films produced in, say, the 1970s tend to look like the 1970s. But it’s true at the level of plot and characterization too. The stories filmmakers tell reflect the possibilities and limitations of their era. The Wizard of Oz was a narrative vehicle designed to showcase the wonders of technicolour. Avatar did much the same for leading-edge 3D and motion-capture technologies. Often in cinema, the historical circumstances are the subject. Blood and Honey’s circumstances—and, to a degree, its subject—are the copyright conventions of our era, which have a long and complicated history.
When the British parliament crafted the world’s first copyright statute between 1709 and 1710, it was trying to reconcile competing interests: the interests of writers, printers, and publishers, who, in order to monetize their works, needed some form of legally protected ownership, and the interests of the public, which benefited from access to information and culture. Parliament balanced these claims by separating them out in time. Authors would have exclusive control over their works for fourteen years—extendable by an additional fourteen if the authors were still alive—at which point the texts would enter what we now call the public domain. In 1710, Queen Anne gave the bill royal assent, creating foundational copyright norms.
These norms appealed to the founders of the US republic, perhaps because they embody an entrepreneurial Hamiltonian ethos while also assuaging Jeffersonian fears about the concentration of power. It’s a basic tenet of American (that is, Hamiltonian) capitalism that, to have a dynamic country, you need economic incentives (and therefore protections for intellectual property). But it’s also true, as Jefferson warned, that knowledge is power—a power the law centralizes when it grants exclusivity to copyright holders.
The English, though, with their statute, figured this all out. No Brit would ever use this language, but Queen Anne’s law—or at least its underlying philosophy—was Hamiltonian in the short run and Jeffersonian over the long haul. In America, copyright protections could serve the interests of capitalism; their expiration could serve the interests of democracy. Perhaps that’s why, in the text of their constitution, the US framers basically copied the copyright conventions of the monarchy they’d overthrown.
Countries under the British tradition, including Canada, followed suit. In 1886, Western nations harmonized their copyright norms at the Berne Convention, resulting in the intellectual property system we know today. This system is either broadly permissive or ambiguously prohibitive depending on whether a given copyright has or has not expired. When a copyright term ends, anybody—at least in theory—can do anything they want; when a copyright is in effect, the rules are murkier, and efforts to interpret them can be laughable or absurd. In 2015, jurors in a civil case were given the sheet music to Robin Thicke and Pharrell Williams’s “Blurred Lines”—because that’s a thing that exists—and told to scrutinize it for minor similarities to Marvin Gaye’s “Got to Give It Up.” (They found what they were looking for. Thicke and Williams were told to pay US$7.3 million to the Gaye estate, a number that changed to nearly US$5 million after an appeal and final judgment three years later.)
In 2018, a US district judge was asked to contemplate whether the lyrics to Taylor Swift’s “Shake It Off” (“The players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate”) bear an unseemly resemblance to words form a lesser-known song by the girl group 3LW (“Playas, they gonna play / And haters, they gonna hate”). Ultimately, the judge determined that 3LW’s lyrics were “short phrases that lack the modicum of originality and creativity required for copyright protection.” Translation: everybody knows that players play and haters hate. Nobody can claim to have originated this insight.
Such cases may seem trivial and beneath the dignity of the courts, but the underlying philosophical questions (Who owns an idea? At what point does a similarity constitute a theft?) have serious implications for artists. This year, alongside rulings on deportation and affirmative action, the US Supreme Court will determine whether Andy Warhol stole from the photographer Lynn Goldsmith when, to make a series of celebrity silkscreens in 1984, he appropriated a photograph Goldsmith had taken three years earlier of the pop star Prince. Goldsmith’s image is austere, sombre, and dignified; Warhol’s series is colourful and slick. She depicts Prince as a complex individual, while he reduces the pop star to a brand—an apparent comment on the flattening effects of mass culture.
Do these thematic differences undercut the charges of plagiarism? Are Warhol’s silkscreens sufficiently original—if not in substance, then at least in meaning—that they can be considered works of art in their own right rather than mere reproductions? If the court says no, it may deliver a blow to artistic freedom. In his time, Warhol was commenting on an actual phenomenon: celebrity culture really does transform humans into icons. Responding to the world is what artists do. A ruling against the Warhol estate could impede their ability to do it.
But if you’re worried about the chilling effects of such a ruling, you can take solace in knowing that, eventually, the case will be moot. Goldsmith’s copyright will someday expire, at which point neither she nor her estate will be able to sue anybody for anything. If the pre-expiration phase of a given copyright is the more legalistically interesting one, the post-expiration phase is more artistically fertile, because there are fewer limits. Had he wanted to, Frake-Waterfield could’ve depicted Winnie-the-Pooh doing all kinds of unconscionable things: pissing on Jim Morrison’s grave, palling around with Hitler, renouncing honey for some godawful substitute, like Greek yogurt or corn syrup. People who feel that Frake-Waterfield’s movie goes too far should consider that, legally, it could have gone further.
Of course, it’s one thing to say that Frake-Waterfield is acting within his rights. It’s another to say that what he’s doing has value. To see why it does, you first have to understand the various anti-democratic and anti-creative forces that are arrayed against his project and others like it.
If the British parliament of 1710—with its maximum-twenty-eight-year copyrights—intended to strike a balance between the interests of creators and publishers and those of the public, many big copyright holders today have found ingenious ways of tilting that balance in their favour. Right now, in the United Kingdom, the United States, the European Union, and Canada, copyright extends for a full seventy years following an author’s death. In Canada, films and TV shows—which have multiple authors—and works with joint ownership can be protected for seventy-five years after their release. In the United States, such protections can last nearly a century.
Governments have expanded copyright terms in part because powerful lobbyists wanted them to do so. When, in 1998, then US president Bill Clinton signed a law extending the copyright for motion pictures from seventy-five to ninety-five years (among other changes), critics dubbed the bill the Mickey Mouse Protection Act in honour of its most fervent supporter, the Walt Disney Company, which sought to ensure that its biggest piece of intellectual property tarried a little longer outside the public domain. (Mickey-related products may bring Disney as much as $3 billion a year, although estimates vary.)
Corporations have also used trademarks to prolong their monopoly or their rights. In theory, copyrights are for creative or intellectual works, and as creators and intellectuals eventually die, so too do copyright protections. Trademarks, on the other hand, are endlessly renewable, since they can exist as long as a product or a service is in use. All of this makes sense. Imagine if sometime after the emergence of Bibendum—the humanoid figure anglophones call the Michelin Man—he had passed into the public domain. Retailers would have slapped his cheery face on seemingly everything in store, and you wouldn’t have known which tires to buy.
But if you can understand why our culture differentiates between copyrights and trademarks, you can also understand why corporations have an interest in muddying that distinction. Different versions of Mickey Mouse, for instance, are both copyrighted and trademarked. What does this mean for artists who may want to use him in their works? We’ll find out next year, when the copyright for Mickey’s first movie, Steamboat Willie, finally expires.
Right now, there are many unknowns. If artists appropriate the Steamboat-era Mickey—a figure with a rat nose and pupil-less eyes, who’s less cute than the Mickey of Fantasia or The Prince and the Pauper—will Disney sue for trademark infringement or say that the act violated existing copyright protections? Will the courts look favourably on such claims? Disney’s version of Winnie the Pooh, who wears a red tee and spells his name without hyphens, is also copyrighted and trademarked. Frake-Waterfield’s Pooh sports trousers and a lumberjack shirt to distance the character from Disney’s.
Clearly, through crafty machinations, copyright holders are turning the laws into something they were never meant to be. If the original goal was to foster a vibrant cultural marketplace, corporations today are nurturing a type of capitalism that looks more like the oligarchic or rentier variety, in which players establish monopolies on assets, defend those monopolies shamelessly, and shake down everyone else for cash. Last year, Hermès sued a Los Angeles entrepreneur for selling a nonfungible token (or NFT) depicting a Birkin bag. Netflix has gone after a pair of TikTokers to stop them from touring their indie musical, a fan tribute to the show Bridgerton. Warner Bros. recently won a claim against a sports charity that used Harry Potter and Gilmore Girls references in outreach campaigns. And in 2006, Disney stepped in to prevent a stonemason from carving Winnie the Pooh into a child’s tombstone.
Nothing in Frake-Waterfield’s movie is as nasty as that last stunt. A comparison between his way of using Winnie (which is irreverent and crude) and Disney’s (which is exploitative and mean) helps clarify what’s at stake here. Sure, Blood and Honey is obnoxious, but the obnoxiousness is the point: it’s Frake-Waterfield’s way of claiming the full freedoms allowed under the laws. Those laws have been bent out of shape and will likely be subject to future warping, but for now at least they still belatedly make space for artistic freedom. To protect what’s left of this freedom, though, artists must exercise it, and for it to be meaningful, it must include the right to make works that other people don’t like.
Plus, one doesn’t have to enjoy a given piece of art to benefit from its existence. Lawrence Lessig, the famed legal scholar and open-content activist, has characterized our society as a “remix” culture. We create not by summoning ideas, fully formed, into our imaginations but rather by repurposing the symbols around us. Our most iconic fictional characters have had long and varied careers. Wonder Woman, the righteous Amazonian and occasional Nazi hunter, has roots in pin-up culture. Shakespeare’s characters, themselves pilfered from regional folklore and the Greco-Roman canon, have been reincarnated (albeit selectively and subtly) in all kinds of surprising forms—Katherine the shrew as a teenaged ballbreaker in the rom-com 10 Things I Hate About You, rageful Lear as a Trumpy media baron in the HBO drama Succession, the hapless Rosencrantz and Guildenstern as a skittish meerkat and flatulent warthog in Disney’s The Lion King.
As for Dracula—is there anything he hasn’t been? The author Bram Stoker registered the character for a UK copyright but purportedly never for a US one. And so, since Dracula’s arrival in 1897, we’ve seen him as an enigmatic outsider in the original novel, a murine figure of revulsion in F. W. Murnau’s silent classic Nosferatu, a decadent aristocrat in the Tod Browning film that followed, a guy you’d want to date in the Showtime series Penny Dreadful, a guy you’d want to sleep with in the romance novel Dracula, My Love, a purveyor of breakfast cereal in advertisements for General Mills, and an effete puppet who teaches children to count on Sesame Street. The list could go on, but you get the point: as they move through culture, our most beloved characters reside in many homes. Some are clean, well-lit places; others are houses of ill repute.
Winnie-the-Pooh is now embarking on that same journey. In the decades to come, he’ll likely assume forms strikingly different to Milne’s bumbling British bear or the cutesier Disney character who appears on sippy cups and diapers. A few of these personas will enrich Milne’s legacy; most will not. But we can’t have the former without the latter. And if you’re upset that Winnie-the-Pooh now belongs to an edgelord like Frake-Waterfield, remember that he also belongs to you.
