Copyrights in Neverland

O nce upon a time, there was a copyright that would not die. A short and shy Scottish writer, James Matthew Barrie, published a story about a boy who never grew up. In 1929, after publishing the script of the play Peter Pan, Barrie gave away its lucrative copyright to Great Ormond Street Hospital (GOSH) – arguably the best children’s hospital in Britain. When Barrie passed away in 1937, his will restated that the copyright belonged to GOSH.

But copyrights aren’t meant to live forever. The U.K. copyright would have outlived Barrie for fifty years (the law at the time) and died in 1987, if a later statute had not carved out an exception. The Copyright, Designs and Patents Act 1988 explicitly granted a perpetual extension of some of the rights to Peter Pan the play and entitled GOSH to the royalties.

Since, GOSH has protested the publication of a number of derivative works, including Peter and the Starcatchers – the first of a series of prequels written by Dave Barry and Ridley Pearson and published by Disney. These books went on to be bestsellers, with a play version opening on Broadway this year and a movie version in the works. As one defense, Disney cited the distinction between the copyrights of Peter Pan the play, first performed in 1904, and the novel, published in 1911. The statute, Disney argued, guarded the rights of former but not the latter

The story of Peter Pan’s copyright is a poetic illustration of the best and worst arguments for copyright protection. On the one hand, “won’t someone please think of the children?!” On the other, we have a classic story already very much a part of the public imagination. The moral anxiety surrounding copyright violations stems partly from what we learned in school, where the written word is sacred: plagiarism is really, really bad. But not all trespass of copyrights is as clear-cut as pretending ownership of someone else’s homework. The stroke of midnight, a poison apple, true love’s first kiss – the magic of these phrases is stolen from stories told a hundred different times, a hundred different ways. Is a retelling of Peter Pan more or less a violation than a retelling of Cinderella? The difficulty of distinguishing the play from the novel further highlights the unnaturalness of guarding intellectual property.

Of course, the state has an interest in making sure more Neverlands are created by securing the benefits of these works. However, the state does not have an interest in barring all travel to Neverland forevermore. What about all the current and future bestselling books and movies and plays that may themselves become classics? For how long should we stunt the growth of an idea – a good idea, that catches the fancy of those a hundred years after its first imagination?

Ironically enough, Peter Pan is not a happy story. It is about a boy who wouldn’t – couldn’t – grow up.

 

For more information about the controversy surrounding Peter Pan’s copyright, please read: Jennifer S. Green, Copyrights in Perpetuity: Peter Pan May Never Grow Up, 24 Penn St. Int’l L. Rev. 841 (2006).

Joo-Young Rognlie has a degree in English and is a 1L at Harvard.