Emily Somma v. GOSH [Peter Pan case] Case Page

Summary

The Cyberlaw Clinic represents Emily Somma, the author of new Peter Pan book that tells children growing up isn't so bad. In After the Rain, A New Adventure for Peter Pan, present day children rescue Peter Pan from Neverland so he can grow up. J.M. Barrie's original Peter Pan books are in the public domain now, copyright having expired. However subsequent Peter Pan plays and a musical based on the Peter Pan books are still copyrighted in the U.K. The owner of those copyrights has argued that Somma can't write a book about the Peter Pan character and its lawyer has sent her a cease and desist letter.

Daisy Books, Somma's publisher, has a FAQ list on the Peter Pan character.

Updates

Settlement reached

We are pleased to report that the parties have reached an amicable resolution of this litigation. The parties have jointly issued a press release announcing the settlement (press release). The terms of the settlement are otherwise confidential.

Ms. Somma is the author of After the Rain: A New Adventure for Peter Pan, ISBN 0973063947 (Daisy Books, 2002). To purchase, please contact sales@daisybooks.com, or visit www.chapters.indigo.ca.

Ms. Somma may be contacted for comment and press inquiries by email at esomma@cogeco.ca.

Copyright Misuse

We filed a Motion to Amend the Complaint today to add a claim for copyright misuse by GOSH. The motion will be heard on March 18, 2005, before the Hon. Judge Jeffrey S. WHite, of the District Court in San Francisco. See Proposed Second Amended Complaint.

NPR on Peter Pan

NPR’s All Things Considered recently broadcast a background story about JM Barrie and the Peter Pan stories. The broadcast is available for download here.

New settlement conference judge

District Judge White reassigned our settlement judge. The settlement conference will now be before Magistrate Judge Bernard Zimmerman sometime before February 18, 2005.

Judge Zimmerman, like all settlement judges, will not be involved in other aspects of the case (like making discovery or dispositive motion rulings). The parties will appear in person before Judge Zimmerman and, if there’s room for negotiation, he will work towards resolving the dispute before the case proceeds further on the litigation front.

More on Disney-Gosh

Here’s another story published yesterday at CNN.com about the Peter and the Starcatchers dispute between Disney and GOSH.

Peter and the Starcatchers

The press is reporting a dispute between GOSH and Disney over the publishing of a Peter Pan “prequel” — entitled Peter and the Starcatchers — by Disney’s subsidiary (Hyperion). The book was written by Dave Barry and Ridley Pearson. The Telegraph (London) appears to have broken the story yesterday (Telegraph article), and today the NY Post reported on it too (NYPost article). The Telegraph story refers to Emily Somma’s case as “hanging over the hospital” and Disney reportedly made a statement referring to Somma’s case as “another American test case.” According to the Telegraph story, the hospital has sent a letter to Hyperion, and will be “discussing it with [their] lawyers next week.”

Case Management Conference

The Case Management Conference took place on Friday before Judge Jeffrey S. White.

Prior to the conference, the parties submitted a supplemental joint statement. Rather than address issues that are normally covered in a joint statement (briefing schedules, trial dates, scope of discovery and the like), the Defendant attempted (unsuccessfully) to deflect attention from its own wrongdoings by turning the spotlight to CIS, calling the case “a cause.” Interestingly, Defendant’s portion of the statement declares that “[e]very party and lawyer involved in this matter knows that no [reasonable apprehension of being sued by Defendant] exists.” (p. 4) Of course, nothing could be further from the truth, and we see Defendant’s effort to downplay its conduct as a sign of the strength of Ms. Somma’s underlying claims.

Ms. Somma’s rights are plainly being trampled by the Defendant’s overreaching claims of copyright protection and Defendant knows it. As described in the complaint, Defendant overtly threatened Ms. Somma and demanded that she “cease and desist from any acts in respect of” her book, After the Rain. Defendant also peppered its threats with reference to other litigaiton it had instituted “to protect its rights”and which had been purportedly “resolved in [its] favor.” It’s lawyers also told Ms. Somma that Defendant “is prepared to protect its rights.” After receiving such threats, what more should Ms. Somma have waited for?

The outcome of the conference is that the Court referred the parties to a settlement magistrate judge. (We have since been assigned to Judge Maria Elena James.) If the parties do not settle, we will have an expedited discovery and hearing schedule regarding Defendant’s motion to dismiss followed by a trial date of October 17, 2005. The Court also issued this formal scheduling order today.

Motion from across the Ocean

At long last, the Great Ormond Street Hospital has responded to Emily Somma’s complaint for declaratory judgment, filing today its
Motion to Dismiss.
GOSH argues that the Federal Court in California has no jurisdiction over it for this dispute between an English hospital and a Canadian author. While admitting that GOSH has done business with California movie makers, specifically licensing the copyright at issue in the suit, beginning with Disney, it denies doing business in California. This Motion is noticed for May 14, 2004 before the Honorable Jeffrey White in San Francisco.

Supporting Declarations: Andrew Fane, trustee of the Great Ormond Street Hospital.

Charles Van Nostrand of Samuel French.

Hague Convention Service Completed

We’ve learned that the Central Authority in London, England succeeded in serving defendant Great Ormond Street Hospital on January 10, 2004 (only about one year after we filed the original Complaint). The Central Authority still needs to certify that the requirements of the Hague Convention are met but that is mere housekeeping. Thanks to John Talbot of Talbot’s Investigations for following up on the service saga.
By agreement GOSH will file its response 7 days before the last date to file the joint case management conference statement.
The case is reassigned to U.S. District Judge Jeffrey White, sitting in San Francisco.

Case Finally Deemed Served on Defendant

While waiting for service under the Hague Convention to be completed, we served Defendant, located in London, via International Federal Express on November 17 and filed a declaration concerning service with the Court, explaining exactly what we did.
Today I received an e-mail from the Court stating that the Defendant has been served and the Answer is due December 8. We have a case management conference scheduled for January 14, 2004.

Links for lots of information about Peter Pan

Since his introduction in 1902 in The Little White Bird, Peter Pan has appeared in numerous works of literature, music and art. Peterpanfan.com is a nice website that I just found, apparently run by volunteers, with links to a wealth of information about Peter Pan works and forums where fans can discuss them.

Why Is This Case So Quiet?

You may be wondering why nothing seems to have happened in this case since January. The reason is that the defendant, the owner of the copyright in the play “Peter Pan,” is located in London in the United Kingdom. In order to obtain jurisdiction over the defendant in the U.S. District Court in San Francisco, California, CIS is having the defendant served according to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, a treaty signed by both the United States of America and the United Kingdom. Essentially, our process server transmits the Summons and Complaint and related documents to the Senior Master of the Supreme Court in England (Central Authority) and the Central Authority is required, under the Convention, to serve the United Kingdom defendant. Unfortunately the Convention does not require that service be accomplished within any set time, and in our case it has taken over six months already!

Amended Complaint

Download file

CIS Asks Court to Rule that ‘Peter Pan’ is in the Public Domain

On Friday December 20, The Center for Internet and Society asked a California Federal Court to hold that Peter Pan is in the public domain and that authors have the right to build on the public domain character by writing new stories about Peter Pan. CIS filed the Complaint for Declaratory Judgment on behalf of Emily Somma, author of “After the Rain, A New Adventure for Peter Pan”, a new childrens’ book about Peter Pan, built on the Peter Pan character first introduced in 1902 in the JM Barrie novel “The Little White Bird.” She asked the court to find that the character Peter Pan is in the public domain and that Great Ormond Street Hospital, which claims to own all rights to the fictional character “Peter Pan” cannot prevent her from publishing “After the Rain” in the United States.
The current version of the Complaint is here href=”http://cyberlaw.stanford.edu/about/cases/filing/Amended Complaint 1-07-03.pdf”>Download file

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.

Do you have a question you’d like to see us answer? Email it to FAQ Questions.

MyShelf.com: Interview with Emily Somma

MyShelf.Com has an interview with Emily Somma on her book, After the Rain. [Scroll down about 1/3 of the way.]

AP: Author’s suit claims copyright has expired on Peter Pan

The Associated Press has an article on Emily Somma’s Peter Pan character case in Author’s suit claims copyright has expired on Peter Pan.

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