*The views expressed in this article do not represent the views of Santa Clara University.
Credit: Craig Duffy|Flickr
In 1928, Disney released Steamboat Willie, a cartoon featuring the character Mickey Mouse, who quickly became one of Disney’s most popular characters. However, Disney’s monopoly over this popularity is soon coming to an end, and in 2024, its 95-year copyright over the Mouse will end, placing the Steamboat Willie Mickey Mouse into the public domain. With Mickey Mouse in the public domain, artists will be able to use the character in their own works without having to worry about infringing Disney’s copyright.
This fair use has forced the company to save their precious intellectual property by turning it into a trademark, where it can stay with Disney in perpetuity. (DW Made for Minds). As a trademark, it would be infringement for an artist to create something that reminds fans of Disney’s brand. Lawyer Marc Jonas Block explained to Newsweek, “Trademark protections last as long as Disney continues to use Mickey Mouse as a company logo.” (Emma Nolan/Newsweek). For Disney, this is vitally important, as Mickey is one of its most popular and profitable characters, with estimates valuing the popular mouse at around $178 Billion. (BlueWhaleMedia).
Disney’s Copyright Problem
Copyright protects original works of authorship fixed in tangible mediums of expression; works of authorship include literary works, musical works, dramatic works, and motion pictures. 17 USC § 102. Normally, works are governed by the 1978 statute, which gives works copyright for life of the author plus 70 years. Eldred v. Ashcroft, 573 U.S. 186, 195 (2003). However, Steamboat Willie was created before 1978, meaning it is governed by the Copyright Act of 1909, which originally granted a duration of 28 years plus a renewal of another 28 years. Self-Realization Fellowship Church v. Ananda Church of Self-Realization, 206 F.3d 1322, 1325 (9th Cir. 2000); see Edward B. Marks Music Corp., v. Jerry Vogel Music Co., 42 F. Supp 859, 863 (S.D.N.Y. 1942).
The Sonny Bono Copyright Term Extension Act extended works under the 1909 Act to a term of 95 years from the date the copyright was originally secured. Thus, the copyright for Steamboat Willie was extended to last 95 years total. Yet, even this extension was limited, as the copyright for the earliest version of Mickey Mouse will expire in 2024, leaving the beloved Mouse as portrayed in Steamboat Willie to enter the public domain for others to use in their stories.
Losing Copyright Ramifications
With Steamboat Willie in the public domain, the possibilities for creative expression are endless. Take for example, the upcoming Winnie the Pooh movie, Winnie the Pooh: Blood and Honey. This horror film stars Pooh and Piglet as feral animals on a “quest for food and survival” after being abandoned by a college-bound Christopher Robin. The new Winnie the Pooh movie perverts the beloved bear from A.A. Milne’s book, putting a dark spin on the well-known story. Perhaps Disney can expect something similar to happen to Mickey Mouse in Steamboat Willie. However, it is worth noting that subsequent updates to Mickey Mouse post Steamboat Willie will not enter the public domain and are still under Disney’s copyright protection. (DW Made for Minds).
As evident by Winnie the Pooh: Blood and Honey, the public domain is the realm where intellectual property is unprotected by copyright and belongs to the community at large to be used by anyone. Kemelhor v. Penthouse International Ltd., 689 F. Supp. 205, 212 (S.D.N.Y. 1988). When Mickey Mouse enters the public domain, anyone and everyone can use him without having to worry about whether he is protected by copyright or not. Everything in the public domain is fair game. If someone were to make a short animation of Mickey Mouse picking flowers in a field, they may do so. If someone were to make a movie where Mickey Mouse becomes a plumber, they may do so. In the public domain, artists can create art and use art to tell stories for the benefit of everyone.
Already, fans of Mickey Mouse and other Disney characters have created fanart that ranges from simple tributes to more adult-focused adaptations. If this is what fans are creating now, one can only imagine what will come next when copyright no longer exists, and Disney will have little control over any of it. With Winnie the Pooh, “Disney won’t be able to sue anyone that uses A.A. Milne’s Winnie-the-pooh stories.” (Jaime Sylvester/Disney Fanatic). In fact, there is criticism of the new horror movie to be found all over the internet, including users calling for boycotts of the movie, questioning how Disney could allow such a movie to be produced, and demanding that watchers face public criticism. (Russ Burlingame/Comicbook). It seems fair to presume that well-known characters put in the public domain are ripe for fans to show in new ways. If Winnie the Pooh or the fanart for Mickey Mouse is any indication, Mickey is surely to be portrayed in this new light.
Does Disney Own the Trademark over Mickey Mouse?
The main question is what will happen to fans who wish to create their own stories about Mickey Mouse if Disney owns the trademark on the character. Should Disney acquire the trademark, fans would still be free to use the Mickey Mouse character in their stories and artwork, but would have to make sure that people do not associate it with the Disney brand. In that instance, Disney could argue you have violated its trademark. (Erum Salam/The Guardian).
What is a Trademark?
A trademark is words, phrases, logos, or symbols that are (1) used by a person or (2) which a person has a bona fide intention to use in commerce and is used on his goods that are sold and indicate a source of the goods. 115 U.S.C. § 127. In an attempt to turn Mickey Mouse into a trademark, Disney has been playing clips of Steamboat Willie at the beginning of their movies. “The signature melody for Steamboat Willie has been used as an introduction for movies by Walt Disney Feature Animation ever since the animation studio’s restructure[] by John Lasserter and Ed Catmull under the name Walt Disney Animation Studios (starting with the movie Meet the Robinsons).” (Disney Fanon Wiki). Incorporating the original Steamboat Willie cartoon can be interpreted as an attempt by Disney to associate Mickey Mouse in Steamboat Willie as a company logo that makes people think of Disney.
There is good reasoning for Disney to want to associate the cartoon with Disney, specifically because trademarks have no time limit. Ezaki v. Glico Kabushiki Kaisha v. Lotte Int’l Am. Corp., 986 F.3d 250, 256 (3rd Cir. 2021). Trademarks are protected in perpetuity so long as they are in use. While Disney cannot stop the copyright from expiring, by using Steamboat Willie at the beginning of their movies, Disney will keep Mickey safe under trademark protection. So, even though Mickey Mouse will enter the public domain, fair use only goes so far as to protect creations that do not remind people of Disney.
Creating content featuring Mickey Mouse in a way that does not remind the public of Disney is a hard challenge. Fans would need to find a way to make Mickey standout on his own without invoking any resemblance or similarity to Disney. Perhaps a new art style or different tone could be sufficient, similar to the dark expression used in the Winnie the Pooh film. Waterfield, the director of Winnie the Pooh: Blood and Honey, told Variety the difficulties with traversing the fine line between public domain and intellectual property protection when creating the new movie. “We knew there was this line between that, and we knew what their copyright was and what they’ve done. So we did as much as we could to make sure [the film] was only based on the 1926 version of it.” (K.J. Yossman/Variety). Waterfield swapped Pooh’s iconic red shirt for a lumberjack shirt and a distorted face and Piglet now looks scary and is dressed in black. Not to mention, the once lovely child-caring characters are now serial murderers out for revenge, which is a major change in tone.
What Does This All Mean?
Disney is going to fight tooth and nail to protect their beloved cash mouse, as Mickey Mouse is arguably one of the most recognizable characters in art. But, even so, no one is above copyright law, not even the Mouse. The Mickey Mouse in Steamboat Willie will expire in 2024 and enter the public domain. Once in the public domain, artists are free to use Mickey Mouse in any way they see fit so long as they do not create art that makes people associate the work with Disney. May Mickey Mouse enter the public domain in peace.