Author's suit claims copyright has expired on Peter Pan

Wednesday January 01, 2003

By IAN STEWART
Associated Press Writer

SAN FRANCISCO (AP) Peter Pan, the boy who wouldn't grow up, has been dragged into the adult world of federal court.

Canadian author Emily Somma has sued in San Francisco claiming the characters in ``Peter Pan,'' including Tinker Bell, Wendy and Captain Hook, are now in the public domain and no longer protected by a copyright awarded in 1929.

The suit is a pre-emptive move in anticipation of legal action by the British hospital that currently holds the copyright to Peter Pan.

The Great Ormand Street Hospital for Sick Children in London already has warned Somma to halt publication of ``After The Rain: A New Adventure for Peter Pan,'' which has been published in Canada and can be purchased through the Internet.

A lawyer for the hospital claims Somma's efforts to publish a work without paying royalties is depriving the hospital of revenue it needs to treat sick children.

Somma's lawyer, Elizabeth Rader, said the author has offered to pay royalties but was rebuffed.

The impending legal battle is part of a growing debate over copyright material.

The U.S. Supreme Court heard arguments in October in a case that seeks to thrust closely held creative property ranging from music such as George Gershwin's ``Rhapsody in Blue'' to books by Ernest Hemingway and F. Scott Fitzgerald into the public domain.

The copyright to Peter Pan and its characters was awarded by the original creator, Sir James M. Barrie, to the hospital in 1929. The play was written in 1904.

U.S. copyright protection for Barrie's works, including ``The Little White Bird'' a Peter Pan prototype written in 1902 and the popular children's play ``Peter Pan'' normally would have expired in 1987, a half-century after Barrie's death.

In a letter ordering Somma to halt publication of her book, the hospital's lawyer, Alvin Deutsch, contends that a 1976 U.S. law extended the copyright protection for Peter Pan until the year 2023.

Somma's lawyer disputes the logic and the math.

``They have a theory that spells out to that year,'' Rader said, ``But I don't see how it adds up.''

Somma's ``After the Rain,'' in which Pan is brought home from Neverland to grow up, was published by Hamilton, Ontario-based Daisy Books.

``I wrote the book for children, I want it to be available to children,'' Somma said.

The Canadian edition of ``After the Rain'' largely went unnoticed until Somma began soliciting publishers in England, Rader said in a telephone interview Monday.

A British act of Parliament extended royalty rights there to the hospital in perpetuity; Peter Pan falls within the public domain in Canada.

``The hospital only has rights to royalties,'' Somma said in a telephone interview from her home in Hamilton. ``They have no creative control over copyrights or content.''

Publicity from the dispute has helped increase sales, she said. The initial print run of 1,000 copies has sold out, Somma said, and Daisy Books plans a second print run of 10,000 copies.

Rader said it is not uncommon for copyright laws to be used to pursue protections beyond their legal capacity.

``All intellectual property owners police their property aggressively,'' said the lawyer, a fellow with Stanford Law School's Center for Internet and Society. ``They often assert more than they can get.''

The London hospital has authorized a series of films based on the original Peter Pan, including Walt Disney's 1953 animated ``Peter Pan,'' and ``Hook,'' the Stephen Spielberg adaptation of the classic tale of never-ending childhood.

Hospital lawyer Deutsch wrote in his letter to Somma that Walt Disney has been authorized to produce several Peter Pan-related projects on the condition the hospital reap a share of the royalties.

Deutsch could not immediately be reached for comment on Somma's suit, which was filed last week in San Francisco federal court.

Rader took the case along with a colleague, Stanford Law School professor Larry Lessig, who argued the case heard by the Supreme Court in October that challenges a 1998 law extending copyright protection an additional 20 years for cultural works.

The Copyright Term Extension Act of 1998, known as the ``Mickey Mouse Extension Act'' because it extends Disney's protection on its popular cartoon character, protects movies, plays, books and music for 70 years after an author's death.

Lessig brought the case on behalf of Eric Eldred, who had been posting work by Nathaniel Hawthorne, Henry James and others on his Web site. Eldred lost his case at trial and on appeal, but managed to persuade the Supreme Court to hear the case.

On the Net:

http://www.daisybooks.com/

http://cyberlaw.stanford.edu/archives/2002 12.shtml

(Copyright 2003 by The Associated Press. All Rights Reserved.)