Copyright

The Curious Case of the Rights to J M Barrie’s Peter Pan
Everyone knows the story of Peter Pan, a child untouched by time. It is somewhat fitting that the rights surrounding the story also perpetual, although the issue is a bit more complicated than thinking happy thoughts and sprinkling pixie dust. Peter Pan is a unique example that calls into question the morality of both changing copyright law and of copyright itself.

Play-write and author J M Barrie gave the rights to Peter Pan, his most famous and long-lasting work, to the Great Ormond Street Hospital (GOSH) in 1929.1 For more than fifty years, these rights helped pay for the hospital’s up-keep. Any time the play was produced, a licensing fee was paid to the hospital and any time an edition of the book came out the hospital would receive the royalties. GOSH also had the right to refuse permission to Peter Pan, which granted them some creative control over how the characters and story were represented.2 For example, a pornographic graphic novel retelling of the story was postponed for publication from 2007 to 2008 when the copyright officially ended because GOSH refused permission. According to the GOSH charity website, “Walt Disney Corporation were licensed exclusive animation rights by Great Ormond Street Hospital in 1939 and the animated film came out in 1953”.3 However, GOSH’s copyright was nearing its terminations in 1987, fifty years after Barrie’s death. This would traditionally have marked the end of GOSH’s rights over the work, allowing Peter Pan to enter the public domain. However, the story for GOSH changed dramatically thanks to the administrative power of Lord James Callaghan, former Prime Minister and MP in the House of Lords. This essay will discuss the motivations behind this change and the implications this amendment had for copyright in the future.

According to the GOSH charity site, in 1987 Lord Callaghan proposed an amendment to the Copyright Designs and Patents Act (CDPA) of 1988.4 This amendment did not grant GOSH its copyright back but it did extend the hospital’s royalties for productions of the play and editions of the novel (including ebooks and audiobooks) in perpetuity.5 Effectively, this meant that although GOSH could no longer refuse permission, the hospital would still be entitled to royalties for any production or edition, leaving the text balancing in limbo between the public domain and copyrighted material. There were limitations to the extended royalties, meaning that the new royalty extension;

1) was only applicable within the UK— those outside the UK do not have to pay royalties unless the work not in the public domain
2) was for royalties only— it did not extend to other aspects of the copyright like the refusal of permission

3) did not extend to Barrie’s work The Little White Bird, which features the characters from Peter Pan 6

Lord Callaghan’s sponsorship of the amendment is controversial. In her book The Case of Peter Pan: The Impossibility of Children’s Fiction, Jacqueline Rose states “The amendment […] was not without its ironies since the only reason the Hospital was in such dire need of money was the systematic assault on the National Health Service which started with the defeat of [Lord Callaghan’s] government by the Conservatives in 1979”7. It is somewhat implied that Lord Callaghan’s decision to support this amendment was not just motivated by philanthropy, but by a political desire to undermine his political opposition and subtly point out their inhumanity at denying a children’s hospital funds. Lord Callaghan’s wife, Audrey Callaghan, was the Chairman of the hospital’s Special Trustees, which further complicates the matter.8 Although the money would go to a charitable institution, it is clear that Lord Callaghan had some personal stake in the amendment, adding to its controversy.

Even at the time the amendment was introduced, questions were asked about what this exception meant for future copyright law. Rose recounts that “Peter Pan […] always provokes a crisis of precedence […] Hence one refrain of the debate: […] ‘it is only Peter Pan who never grows up and only rights in Peter Pan that we are prepared to see continue indefinitely’”.9 She goes on to argue that this extreme iteration of GOSH existing as the exception that proves the rule stems from the knowledge that there actually were many instances when copyright limitations could have been extended but were not during this time.10

Callaghan saved GOSH in the 80s and in 1996 copyright law changed, extending the copyright term from 50 years after the author’s death to 70 years.11 GOSH’s copyright claim was revived and they enjoyed copyright benefits until 2007 when the text entered the public domain again everywhere but in the US and Spain.12

These facts, paired with the benefits the hospital has received, makes one question if non-profits like GOSH should be given exception to copyright laws in the future. It is a bit of a taboo subject– after all, who wants to oppose helping sick children. However, the events following the Copyright Designs and Patents Act (CDPA) of 1988 reiterate that such exceptions are difficult to navigate and have negative repercussions.

Callaghan did not know the full extent of his actions in 1987. He was unaware that copyright laws would be extended another 20 years after an author’s death, giving GOSH the right to refuse permission for another eleven years after 1996. In the period between 1987 and 1996 several Peter Pan adaptions and sequels were made. Would law require these films to obtain permission for Peter Pan retroactively, despite paying royalty fees to GOSH in their original production? Due to the unique copyright situation, these details are unclear. Undoubtedly these issues had to be settled on a case by case basis. The Steven Spielberg classic Hook released in 1991 mentions GOSH in the film 13 and on the hospital’s charity website it mentions that permission was granted but it unclear if this permission was granted in 1991 or five years later when the copyright returned to the hospital.14

GOSH lost its the copyright to Peter Pan again in 2007, but not before the hospital commissioned Geraldine McCuaghrean to write a sequel entitled Peter Pan in Scarlett. It was printed in hopes to raise money for the hospital in a new way while still taking advantage of their connections with Peter Pan. The GOSH charity page claims that the royalties from Peter Pan are not their “main source of charitable income”15 and a member of the charity stated in 2007, “People who talk about millions a year have a strange idea of what a character is worth […] On the whole, it’s been significant but I wouldn’t call it huge. I am on my own doing the Peter Pan administration, but I am part of a charity that has 100 people.”16 When Barrie bequeathed the rights 1920 the estimated revenue Peter Pan would generate for the hospital each year was £2,000 (approximately £90,000 today).17 The general public will likely never know precisely how much the hospital makes off royalties a year, as J M Barrie asked that the figures never be released to the public.18

 

The hospital has benefited greatly from Barrie’s gift of the Peter Pan copyright and Callaghan’s amendment but there is a question of if this kind of copyright extension should exist.Peter Pan is one of the only cases where a text exists in the public domain but still requires royalty fees. Peter Pan may exist on its own plane in the copyright world and may do a lot of good there but the emphasis on it being the exception is important. There should not be more extensions of copyright. These instances create messy negotiations and controversies that would not exist otherwise. This is evident in the case of Emily Somma, a Canadian author who took GOSH to court over the question of the copyright status of Peter Pan. Somma argued that Peter Pan was in the public domain, so she did not have to pay royalty rates to GOSH. In a way, Somma was correct, as the royalty rights only apply within the UK, while Somma’s work was published in initially in Canada, where the copyright expired. When she went to publish in the US, however, there was a problem— the copyright still remained and she had to seek permission.19 In his essay on the subject, Matthew Rimmer argues that “It is inappropriate that Peter Pan should have perpetual copyright protection […] There should be freedom for creative artists to use, adapt, and transform stories, plots and characters that are derived from the public domain”.20

The case of Peter Pan emphasizes the importance of clear copyright laws and the limitation of exceptions. It was a good thing that the House of Lords emphasized the exceptional circumstances surrounding Peter Pan to discourage other exceptions being made because they unnecessarily complicate an incredibly intricate system of checks and balances that reimburse the author’s hard work while also allowing others to use the characters in fair use once copyright has expired.

 

1 “The Most Generous Gift: Peter Pan, J. M. Barrie, and Great Ormond Street Hospital,” Library News: Newsletter For UCL Library Services, December 1, 2015, Accessed September 28, 2018, https:// blogs.ucl.ac.uk/library-news/2015/12/the-most-generous-gift/#.W62zyC-ZPOQ.

2 Rose, Jacqueline, “The Return of Peter Pan,” In The Case of Peter Pan: Or The Impossibility of Children’s Fiction, ix-xviii. London: The Macmillan Press LTD, 1992, GoogleBooks, Accessed September 27, 2018, p ix.

3 “FAQs,” Great Ormond Street Hospital Children’s Charity, Accessed September 28, 2018, https:// www.gosh.org/about-us/peter-pan/faqs#What was the deal with Disney.

4 “Copyright,” Great Ormond Street Hospital Children’s Charity, Accessed September 28, 2018, https://www.gosh.org/about-us/peter-pan/copyright.

5 Ibid.

6 Bailey, Jonathan, ”Peter Pan and the Copyright That Never Grew Up,” Plagiarism Today, April 13, 2016, Accessed September 28, 2018, https://www.plagiarismtoday.com/2015/10/21/ peter-pan-and-the-copyright-that-never-grew-up/.

7 Rose, p x.

8 “The Most Generous Gift: Peter Pan, J. M. Barrie, and Great Ormond Street Hospital.”

9 Rose, p x.

10 Ibid.
11 “Copyright.”

12 Ibid.

13 Burrell, Louise, “Is Hook Really A Bad Steven Spielberg Film?” One Room With A View, January 10, 2017, Accessed September 28, 2018, https://oneroomwithaview.com/ 2016/12/11/second-chance-hook/.

14 “FAQs.”

15 Ibid.

16 Allen, Katie, “Never Ends for Peter Pan: Children’s Hospital Set to Lose Rights to Peter Pan,” The Guardian, December 28, 2007, Accessed September 28, 2018, https:// www.theguardian.com/business/2007/dec/28/gtormondst.

17 Ibid.

18 Ibid.

19 Rimmer, Matthew, Dr. “Never Neverland: Peter Pan and Perpetual Copyright.” News Magazine of the Australian Library and Information Association 8 (December 2004): 8-9. Accessed September 28, 2018. http://www.austlii.edu.au/cgi-bin/viewdoc/au/journals/inCiteALIA/ 2004/273.html?context=1;query=Never Neverland;mask_path=#. p.8

20 Ibid. p. 9

 

Work Cited

Allen, Katie. “Never Ends for Peter Pan: Children’s Hospital Set to Lose Rights to Peter Pan.” The Guardian. December 28, 2007. Accessed September 28, 2018. https:// www.theguardian.com/business/2007/dec/28/gtormondst.

Bailey, Jonathan. “Peter Pan and the Copyright That Never Grew Up.” Plagiarism Today. April 13, 2016. Accessed September 28, 2018. https://www.plagiarismtoday.com/2015/10/21/ peter-pan-and-the-copyright-that-never-grew-up/.

Burrell, Louise. “Is Hook Really A Bad Steven Spielberg Film?” One Room With A View. January 10, 2017. Accessed September 28, 2018. https://oneroomwithaview.com/ 2016/12/11/second-chance-hook/.

“Copyright.” Great Ormond Street Hospital Children’s Charity. Accessed September 28, 2018. https://www.gosh.org/about-us/peter-pan/copyright.

“FAQs.” Great Ormond Street Hospital Children’s Charity. Accessed September 28, 2018. https:// www.gosh.org/about-us/peter-pan/faqs#What was the deal with Disney.

Rimmer, Matthew, Dr. “Never Neverland: Peter Pan and Perpetual Copyright.” News Magazine of the Australian Library and Information Association 8 (December 2004): 8-9. Accessed September 28, 2018. http://www.austlii.edu.au/cgi-bin/viewdoc/au/journals/inCiteALIA/ 2004/273.html?context=1;query=Never Neverland;mask_path=#.

Rose, Jacqueline. “The Return of Peter Pan.” In The Case of Peter Pan: Or The Impossibility of Children’s Fiction, ix-xviii. London: The Macmillan Press LTD, 1992.
GoogleBooks. Accessed September 27, 2018.

“The Most Generous Gift: Peter Pan, J. M. Barrie, and Great Ormond Street Hospital.” Library News: Newsletter For UCL Library Services. December 1, 2015. Accessed September 28, 2018. https://blogs.ucl.ac.uk/library-news/2015/12/the-most-generous-gift/#.W62zyC- ZPOQ.