‘When you are a Bear of Very Little Brain and you think of Things, you find sometimes that a Thing which seemed very Thingish inside you is quite different when it gets out into the open and has other people looking at it,” wrote AA Milne in the House at Pooh Corner in 1928.
He can little have imagined that, 75 years later, a court in Los Angeles would be deciding a case about that Bear of Very Little Brain which would be worth billions of dollars, would hold a profound significance for the issue of copyright and would certainly appear quite different when it has other people looking at it.
Today, United States district court judge, Florence-Marie Cooper, will hear the latest arguments in one of the most drawn out cases in show business legal history. On the result of the case hang billions of dollars in revenue for Walt Disney Co in what has become the case of the Mouse — Disney’s nickname in the business, from its own profitable four-legged creature — and the Bear.
Last week Judge Cooper gave a tentative ruling that Clare Milne, the author’s granddaughter, cannot reclaim merchandising rights for Winnie the Pooh. If this ruling is finalised, it would mean victory for Slesingers, the American family who acquired the rights back in 1929 and who claim that Disney owes them millions of dollars in royalties. It would mean they retain their share of royalties on Pooh merchandise — everything from videos to pyjamas — until 2024. The ruling would come as a major blow to Disney, who receive at least $1-billion of their annual $25-billion revenue from AA Milne’s creation, although the Slesingers are claiming as much as $4,5-billion.
Disney will be presenting their case today in a bid to persuade the judge not to finalise her ruling. They had been seeking to terminate the Slesingers’ rights under the 1998 Copyright Act which allows the heirs of a writer or artist to reclaim merchandising rights in certain circumstances.
David Nimmer, a Disney attorney, told the LA Times that they were not conceding defeat, despite the initial ruling and its implications. ”We believe in the strength of our position and we look forward to presenting our case,” said Nimmer. Attorneys for Shirley Slesinger Lasswell, widow of the man who acquired the rights, and his daughter, Patricia Slesinger, said the ruling would represent a ”major victory”.
The legal battle of the rights has been under way for more than a decade and has already run up millions of dollars in legal fees on both sides. New York literary agent Stephen Slesinger bought the rights from AA Milne in 1929 and for years the Slesinger family have received royalties from the merchandising connected with Milne’s creation, having reached a licensing agreement with Disney in 1961. Then 12 years ago, the Slesingers claimed that Disney owed them millions of dollars in unpaid royalties, arguing that $35-million from video, DVD and software sales were due.
Bert Fields, the high-profile and outspoken lawyer the family hired, pronounced last year: ”We are seeking damages in the hundreds of millions and we feel very confident.”
Disney rejected the claim, insisting that the products in question were not covered by its original agreement. One of Disney’s legal team, Daniel Petrocelli, told Fortune magazine earlier this year that ”it’s a perfect example of a simple and straightforward case getting bollixed up by lawyers who are trying to invent and conjure up claims where no claim really exists”.
The dispute has taken on a bitterness than neither Mickey nor Pooh would feel comfortable with. Allegations of dirty tricks abound. Both sides have claimed that the other side has shredded documents vital to the case.
Disney has appeared to be on the edge of victory itself in the past. In 1997, a court-appointed accounting firm found that the company owed the Slesingers only $60 508 in unpaid royalties. But the case was not settled and from 1991 to 2000 the Slesinger share of annual Pooh royalties soared from $334 731 to $12,4-million.
Last year, Disney claimed another breakthrough. They said a new deal had been struck which would give them exclusive worldwide rights to all the Pooh characters from 2004. This was based on the decision by the respective granddaughters of both AA Milne and Pooh illustrator EH Shepard to take advantage of 1998 changes in US copyright law that allow them to reclaim their rights and enter into new agreements.
The claim was immediately disputed by the Slesinger side. ”I don’t know exactly what they are talking about,” said Bonnie Eskanazi, a Slesinger lawyer, at the time. ”The Slesingers bought the rights outright from the Milnes and they can’t just divest the Slesingers of those rights.” Disney was accused of using a ”desperate ploy” to wrest control back from the Slesingers.
But even if Judge Cooper does finalise her ruling this week and hand a victory to the Slesingers, the case will be far from over. Disney have indicated that, if the ruling goes against them, they will appeal.
Perhaps in the end the simplest method of deciding would be one that a Bear of Very Little Brain could understand: the best of three in a game of Pooh sticks, in which sticks are dropped on one side of a bridge and the winner is the one whose sticks emerges first on the other side of the bridge. But somehow it seems that this is not something that the US district court in Los Angeles will agree to today.
The players
The Slesinger family (Stephen Slesinger Inc)
Shirley Slesinger Lasswell, the 70-year-old widow of Stephen Slesinger, and Pati Slesinger, daughter of Stephen Slesinger, a New York literary agent who teamed up with AA Milne and illustrator EH Shepard to develop the Pooh brand. Since 1961, the Slesinger family have been cut in on 4% of Disney’s worldwide revenue from Pooh memorabilia, including stuffed toys, Piglet wallpaper, records, even Pooh honey.
Stephen Slesinger Inc is represented by Bert Fields, best known for handling former Disney chairman Jeffrey Katzenberg’s suit against Disney for unpaid wages.
The Milne family
AA Milne’s widow Daphne received 2,5% from the 1961 deal with Disney. Milne’s son, Christopher Robin Milne, cursed the ”empty fame” of being Pooh’s inspiration, and accepted Pooh money only after his daughter, Clare, was diagnosed with cerebral palsy.
In November 2002, following the extension to American copyright law, Clare became Disney’s co-plaintiff. She is seeking to take back the merchandising rights that her grandfather originally granted to Slesinger but is unaware of the legal storm about to break.
As her mother, Lesley, explained in an interview: ”She’s rather vague about that sort of thing. She doesn’t know the difference between £1 000 and £1m. That’s rather nice, don’t you think?”
Last year, Disney agreed to pay the descendants of AA Milne an estimated £10-million a year for the American rights to his characters, including Pooh, Piglet and Eeyore. About £5-million a year will go to Clare. Much of the money will go to a charitable trust set up in her name last year by her mother to help those suffering from cerebral palsy and other disabilities.
Walt Disney Co
Pooh now makes more money than Mickey Mouse, Donald Duck or any of Disney’s home-grown characters combined. Pooh’s worldwide annual sales are said to total about $1-billion or 4% of Disney’s total sales. The Slesingers claim the sum is higher, around $4,5-billion annually.
Disney has made six full-length Pooh films, three television films, 23 videos and a Pooh TV series. Disney is suffering from a sharp decline in visitors to its theme parks, the weakness of ABC, its television network, and repeated failure in its core business of making cartoons. – Guardian Unlimited Â