FAQs

1. Why are you bringing this lawsuit?

Emily Somma has written a beautiful children's book that builds upon the original stories of Peter Pan. These original stories are in the public domain, and free for anyone to build upon. She has been threatened, however, by lawyers representing the current holders of the copyrights of more recent Peter Pan stories. They say that because there is some Peter Pan work that is still under copyright, no one can develop derivative Peter Pan works without their permission. Thus to enable Emily Somma to continue to distribute her work, we need to resolve this dispute.

2. But isn't the current copyright holder a children's hospital in England?

Indeed it is - in fact a great children's hospital, Great Ormond Street Hospital (aka, GOSH), that has done an extraordinary service helping children and research into children's diseases over the past 150 years. James Barrie, the original creator who invented Peter Pan, gave all of his rights in his various works about Peter Pan to the Hospital. Emily Somma has the highest respect for Mr. Barrie's genius, and for the good he did by donating his copyrights to the GOSH. And of course, those copyrights that are still valid and held by GOSH should be respected by everyone.

But when a copyright expires, it is everyone's right to build upon works in the public domain. There is, and should be, no exception to that right because the previous copyright holder was virtuous, just as there is no exception to a copyright just because the current copyright holder is not.

In any case, Emily Somma voluntarily offered to donate part of the proceeds from her book to the children's hospital. The Hospital's Trustees refused. They demand that she stop distributing her book. This case is not about money, it is about creative freedom.

3. Isn't it true that the GOSH has a perpetual copyright on Peter Pan?

Yes, on the play, but only in the United Kingdom. By a special statute, the UK Parliament has granted the GOSH a perpetual "right to a royalty" for "the public performance, commercial publication, broadcasting or inclusion in a cable programme service" of "the play 'Peter Pan' ... or of any adaptation of that work...." But again, that right exists in the UK, and we are defending Emily's right to distribute her work in the United States.

4. Are you or the Hospital suing? If you, why?

We have brought the law suit, but only because Emily Somma has received letters from the lawyers representing the Hospital that threatened legal action if she did not stop distributing her works in the United States. To clarify her right to build on the public domain, we have therefore brought a suit in the United States.

5. Is Somma's lawsuit simply designed to get publicity to increase the sales of Somma's books?

The lawyers representing Great Ormond Street Hospital want Somma to stop publishing her book. We want to make sure she is free to publish her book. Obviously, if she is free to publish, she will sell more books. But given the demands of the lawyers representing the Hospital, Emily Somma had no choice but to sue to defend her rights. She spent 20 years writing her book and bringing this book to market.

6. Does After the Rain copy the Peter Pan story?

No. Like many great books, After the Rain builds on an earlier, famous work, but develops some of the characters in that work--Peter and Tinker Bell -in a different way, bringing them into the present. Peter Pan was the story of a boy who didn't want to grow up. Emily Somma's story is about Peter Pan coming to see that he should want to grow up. Emily told the story like this because she wanted children to see something different in the Barrie story. And for many parents, Emily's story will be a better story for their children to read.

7. But why doesn't Emily Somma just write her own book?

She has. After the Rain is a whole new story about Peter Pan, with lots of new characters and adventures. But like many other creators, she has written the book against the background of our common culture, to critique or advance that culture. Walt Disney was a creator in just this vein. He took the works of the Brothers Grimm and retold them in a way that made them much more appealing to American audiences. He was free to do that because the stories of the Brothers Grimm were in the public domain. J.M. Barrie almost certainly took the name "Pan" from a magical figure in ancient Greek Mythology, and aspects of the Peter Pan character may have been based on Puck from Shakespeare's A Midsummer Night's Dream, Robin Hood, and other public domain fictional characters. Barrie's pirates borrowed many names and characteristics from real and literary pirates of his day. Emily should be as free to build on the past with her own creativity.

8. Do you think Ms. Somma should be able to publish her book even if Peter Pan was not in the public domain? How does this related to the "The Wind Done Gone" case?

We believe there would be a very strong argument that Emily would be free to publish her story even if the copyright had not expired. The precedent for this claim is, as the question suggests, the The Wind Done Gone case. In that case, Alice Randall was permitted to write a story based on the novel Gone With The Wind despite the fact that Gone With The Wind was still under copyright. The Court held that a critical re-use of that story was fair use. So too could one argue that Emily's story is a fair use of the Barrie stories. It too builds upon the Peter Pan story in a way that questions the original author's point.

But fortunately, we do not have to wrestle with that issue in this case. The characters and story that Emily has based her book on are all clearly in the public domain. She should therefore be allowed to publish her book without hiring a lawyer (even a free, Stanford CIS lawyer) to prove her work is a "fair use." All uses of work in the public domain are fair.

9. Why is Stanford's Center for Internet and Society involved?

Emily is not a corporation. She does not expect to make a great deal of money from her book. But her book does represent an important value in our legal tradition: that works in the public domain can be used by the public "without restraint," as Justice Story put it. The Stanford Center is dedicated to defending and advancing the values of the public domain - not in conflict with copyright, but to complement copyright. We believe Emily Somma deserves a copyright for her derivative work. But we also believe she should be free to build that work out of material in the public domain.

10. Will Stanford get paid for representing Ms. Somma?

No. The Center for Internet and Society has taken this case on pro bono.

11. But if Ms. Somma wins, won't it hurt the Children's Hospital?

No. Emily is not challenging any of the Hospital's current copyrights. The Hospital has the right to earn money from those works until they expire. When Emily wins her case, she and many others will be free to build upon the story of Peter Pan that is in the public domain. That will only increase attention to Peter Pan, which in turn will increase the demand for copyrights that the Hospital has licensed. So no, we do not believe that the public domain will harm other great creative work still protected by copyright.

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