Never Neverland: Peter Pan and perpetual copyright

In the case of Emily Somma v Great Ormond Street Hospital for Sick Children, there has been much debate over whether Peter Pan has passed into the public domain. In 1902, JM Barrie first invented the puckish, fictional character of Peter Pan in his book The little white bird. In 1904, JM Barrie adapted his story into a stage play called Peter Pan, or The boy who wouldn't grow up. The play was a great success, and was adapted into a silent movie by Paramount pictures in 1923. In 1929, JM Barrie assigned the copyright in the cycle of Peter Pan works to the Great Ormond Street Hospital for Sick Children - a children's hospital and medical charity. He confirmed the Hospital's ownership of this copyright in his last will and testament in 1937. In 1939, the Hospital licensed the animated film rights to Disney. In 1953, Disney released an animated film version of Peter Pan. It has released the film at regular intervals since that first production. In 1990, Steven Spielberg released an adaptation of the Peter Pan story called Hook. In 2002, Disney released the film Return to Neverland. In 2002, the Canadian children's novelist J Emily Somma published the novel After the rain: a new adventure for Peter Pan. She sought to explore the themes of the classic story in a modern context: Of all of the famous children's stories coming from British authors in the late nineteenth and early twentieth century, Peter Pan is the one that jumps out as very clearly having been written for adults: On these magic shores children at play are forever beaching their coracles. We too have been there; we can still hear the sound of the surf, though we shall land no more. Somma's book concerns a 21st century girl, called Crystal McFarland, who rescues Peter Pan from perpetual childhood in Neverland. Her novel takes a much more positive attitude to the opportunities of adulthood than the original texts. Somma published the novel After the rain: a new adventure for Peter Pan with Daisy Books in Canada, a jurisdiction in which the copyright in the Peter Pan works had expired. She sought permission from the Great Ormond Hospital to publish the novel in the United States and the European Union. However, the Hospital refused her request to publish the book in the United Kingdom, the European Community, and the United States. The trustees asserted: 'The play by JM Barrie is in full copyright in the United States until 2023.' Furthermore, the trustees maintained: 'Unauthorised works, which contain the Peter Pan characters and elements from the original work, are not adaptable in the United States, without the permission of the Hospital, being protected by the laws of trademark and unfair competition.' With the help of the Stanford Center for Law and the Internet, Emily Somma filed a pre-emptive lawsuit in the Federal Court of California against the Hospital to protect her derivative work, After the rain. She sought a declaration that copyright had expired in JM Barrie's books in the United States, and the characters of Peter Pan, Tinker Bell, Captain Hook, and Wendy were in the public domain.

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