Expiring copyright on early Mickey won’t mean open season on famous mouse
Dec. 27, 2022 Updated Tue., Dec. 27, 2022 at 8:33 p.m.
There is nothing soft and cuddly about the way The Walt Disney Co. protects the characters it brings to life.
This is a company that once forced a Florida day care center to remove an unauthorized Minnie Mouse mural. In 2006, Disney told a stonemason that carving Winnie the Pooh into a child’s gravestone would violate its copyright. The company pushed so hard for an extension of copyright protections in 1998 that the result was derisively nicknamed the Mickey Mouse Protection Act.
For the first time, however, one of Disney’s marquee characters – Mickey himself – is set to enter the public domain. “Steamboat Willie,” the 1928 short film that introduced Mickey to the world, will lose copyright protection in the United States and a few other countries at the end of next year, prompting fans, copyright experts and potential Mickey grabbers to wonder: How is the notoriously litigious Disney going to respond?
“I’m seeing in Reddit forums and on Twitter where people – creative types – are getting excited about the possibilities, that somehow it’s going to be open season on Mickey,” said Aaron J. Moss, a partner at Greenberg Glusker in Los Angeles who specializes in copyright and trademark law. “But that is a misunderstanding of what is happening with the copyright.”
The matter is more complicated than it appears, and those who try to capitalize on the expiring “Steamboat Willie” copyright could easily end up in a legal mousetrap.
“The question is where Disney tries to draw the line on enforcement,” Moss said, “and if courts get involved to draw that line judicially.”
Only one copyright is expiring. It covers the original version of Mickey Mouse as seen in “Steamboat Willie,” an 8-minute short with little plot. This nonspeaking Mickey has a ratlike nose, rudimentary eyes (no pupils) and a long tail. He can be naughty. In one “Steamboat Willie” scene, he torments a cat. In another, he uses a terrified goose as a trombone.
Later versions of the character remain protected by copyrights, including the sweeter, rounder Mickey with red shorts and white gloves most familiar to audiences today. They will enter the public domain at different points over the coming decades.
“Disney has regularly modernized the character, not necessarily as a program of copyright management, at least initially, but to keep up with the times,” said Jane C. Ginsburg, an authority on intellectual property law who teaches at Columbia University.
The expiration of the “Steamboat Willie” copyright means that the black-and-white short can be shown without Disney’s permission and even resold by third parties. (There may not be much sales value left, however. Disney posted it for free on YouTube years ago.) It also means that anyone can make use of the film and the original Mickey to create new stories and artwork.
Winnie the Pooh, another Disney property, offers a window into what could happen.
This year, the 1926 children’s book “Winnie-the-Pooh,” by A.A. Milne, came into the public domain. An upstart filmmaker has since made a low-budget, live-action slasher film called “Winnie-the-Pooh: Blood and Honey,” in which the pudgy yellow bear turns feral. In one scene, Pooh and his friend Piglet use chloroform to incapacitate a bikini-clad woman in a hot tub and then drive a car over her head.
Disney has no copyright recourse, as long as the filmmaker adheres to the 1926 material and does not use any elements that came later. (Pooh’s recognizable red shirt, for instance, was added in 1930.) Fathom Events will give “Winnie-the-Pooh: Blood and Honey,” directed by Rhys Waterfield, a one-day theatrical release in the United States on Feb. 15.
Here is where it gets tricky: Disney also holds trademarks on its characters, including the “Steamboat Willie” version of Mickey Mouse, and trademarks never expire as long as companies keep submitting the proper paperwork. A copyright covers a specific creation (unauthorized copying), but trademarks are designed to protect against consumer confusion – to provide consumers assurance about the source and quality of a creation.
Boiled down, any public domain use of the original Mickey cannot be perceived as coming from Disney, Ginsburg explained. This protection is strong, she added, because the character, even in his early form, has such close association with the company. People glance at those ears and smile and “automatically associate it with Disney,” she said.
In 2007, Walt Disney Animation Studios redesigned its logo to incorporate the “Steamboat Willie” mouse. It has appeared before every movie the unit has released since, including “Frozen” and “Encanto,” deepening the old character’s association with the company. (The logo is also protected by a trademark.) In addition, Disney sells “Steamboat Willie” merchandise, including socks, backpacks, mugs, stickers, shirts and collectibles.
“Winnie-the-Pooh: Blood and Honey” most likely does not run afoul of Disney’s trademarks because “no reasonable person would ever believe that Disney would authorize that kind of story,” Moss said. Pooh’s face is also slightly distorted in the film.
“Ever since Mickey Mouse’s first appearance in the 1928 short film ‘Steamboat Willie,’ people have associated the character with Disney’s stories, experiences and authentic products,” Disney said in a statement. “That will not change when the copyright in the ‘Steamboat Willie’ film expires.
“We will, of course, continue to protect our rights in the more modern versions of Mickey Mouse and other works that remain subject to copyright, and we will work to safeguard against consumer confusion caused by unauthorized uses of Mickey and our other iconic characters.”
The topic of Mickey Mouse and copyright has loomed in the public consciousness since the late 1990s, when Disney and other entertainment companies – and, notably, the estates of composers like George Gershwin – successfully lobbied Congress to extend copyright protections.
In many ways, Mickey has become the ultimate symbol of intellectual property, a character more well known than even Santa Claus, market researchers have said.
The 1998 copyright extension prompted a court fight, with detractors arguing that Congress disregarded the Constitution, which holds that copyright protection be given for a “limited” time. “Free the Mouse” bumper stickers began appearing, according to Paul Goldstein, a professor at Stanford Law School and the author of a five-volume treatise on U.S. copyright law.
“Disney was no more active in pushing for the extension than anyone else, but they made for a convenient villain,” he said.
In 2003, the Supreme Court ruled 7-2 to uphold what Congress had done. But the justices did so while holding their nose. “We are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be,” Justice Ruth Bader Ginsburg wrote in the majority opinion.
Disney lawyers and lobbyists likely determined long ago that pressing Congress for another extension would fail. “That last one is held in such bad, bad odor,” Goldstein said. “I don’t think there was any option to try and extend further.”
That means early versions of Popeye, King Kong, Donald Duck, Flash Gordon, Porky Pig and Superman will enter the public domain at various points over the next decade.
If there is anything that Disney takes more seriously than intellectual property, it is public image. In 2020, a Disney affiliate charged an elementary school $250 for showing “The Lion King” without permission at a PTA fundraiser. The media storm that followed was so intense that Robert A. Iger, Disney’s CEO, apologized and said he would make a personal donation.
In the past decade, Disney has also had to contend with the rise of “creator culture,” Moss noted. Digital technology has allowed creativity and expression to flourish online, with YouTube vloggers, Instagram influencers, TikTokers and Twitter rabble-rousers incorporating intellectual property into new works.
That could pose a challenge for Disney when “Steamboat Willie” comes into the public domain. “They won’t be able to go after everyone,” Moss said. “Battle lines will have to be drawn.”
Jane Ginsburg said she was watching closely to see if Disney and other entertainment companies tried to apply trademark law as a substitute for or extension of copyright – as she put it, “apply a separate protection to get to the same place.” In a Supreme Court intellectual property case from 2003 involving 20th Century Fox, Justice Antonin Scalia, writing for the court, warned of using trademarks to generate “a species of mutant copyright law.”
“This is a looming area,” Ginsburg said. “We’re on the cusp of a time when copyrights in a range of visual works will expire.”
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