Mickey Mouse Entering Public Domain (Sort Of)
Steamboat Willie is about to be ripe for exploitation.
AP (“Earliest version of Mickey Mouse set to become public domain in 2024, along with Minnie, Tigger“):
M-I-C-K-E-Y will soon belong to you and me.
With several asterisks, qualification and caveats, Mickey Mouse in his earliest form will be the leader of the band of characters, films and books that will become public domain as the year turns to 2024.
In a moment many close observers thought might never come, at least one version of the quintessential piece of intellectual property and perhaps the most iconic character in American pop culture will be free from Disney’s copyright as his first screen release, the 1928 short “Steamboat Willie,” featuring both Mickey and Minnie Mouse, becomes available for public use.
Steamboat Willie fan fic, here we come. But be careful to distinguish it from the more modern version!
“This is it. This is Mickey Mouse. This is exciting because it’s kind of symbolic,” said Jennifer Jenkins, a professor of law and director of Duke’s Center for the Study of Public Domain, who writes an annual Jan. 1 column for “Public Domain Day.” ”I kind of feel like the pipe on the steamboat, like expelling smoke. It’s so exciting.”
U.S. law allows a copyright to be held for 95 years after Congress expanded it several times during Mickey’s life.
“It’s sometimes derisively referred to as the Mickey Mouse Protection Act,” Jenkins said. “That’s oversimplified because it wasn’t just Disney that was pushing for term extension. It was a whole group of copyright holders whose works were set to go into the public domain soon, who benefited greatly from the 20 years of extra protection.”
But not really, right? With minor exceptions (more on that later) Disney mostly markets the modern versions of Mickey and Minnie. Now, of course, they’ll benefit from the 20-year extensions on those characters.
“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,” a Disney spokesperson said in a statement to The Associated Press. “That will not change when the copyright in the Steamboat Willie film expires.”
Current artists and creators will be able to make use of Mickey, but with major limits. It is only the more mischievous, rat-like, non-speaking boat captain in “Steamboat Willie” that has become public.
“More modern versions of Mickey will remain unaffected by the expiration of the Steamboat Willie copyright, and Mickey will continue to play a leading role as a global ambassador for the Walt Disney Company in our storytelling, theme park attractions, and merchandise,” Disney’s statement said.
How this works, exactly, is unclear. Presumably, if I’m free to use Steamboat Willie however I wish, I can devise a plot wherein he acquires the power of speech?
Not every feature or personality trait a character displays is necessarily copyrightable, however, and courts could be busy in the coming years determining what’s inside and outside Disney’s ownership.
“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,” the company said.
Disney still solidly and separately holds a trademark on Mickey as a corporate mascot and brand identifier, and the law forbids using the character deceptively to fool consumers into thinking a product is from the original creator. Anyone starting a film company or a theme park will not be free to make mouse ears their logo.
Disney’s statement said it “will work to safeguard against consumer confusion caused by unauthorized uses of Mickey and our other iconic characters.”
One imagines Disney will not spend a lot of effort going after fan faction. But they’ll almost surely intimidate anyone trying to produce mass-market movies, television shows, or merchandise featuring Vintage Mickey, using their vast resources to sue people into submission. So, the degree to which this movement into the public domain is meaningful remains to be seen.
Another famous animal sidekick, Tigger, will join his friend Winnie the Pooh in the public domain as the book in which the bouncing tiger first appeared, “The House at Pooh Corner,” turns 96. Pooh, probably the most celebrated prior character to become public property, took on that status two years ago when A.A. Milne’s original “Winnie the Pooh” entered the public domain, resulting in some truly novel uses, including this year’s horror film “Winnie The Pooh: Blood and Honey.”
Young Mickey could get the same treatment.
I’m in a small minority, I think, in not welcoming this change. From my vantage point, 95 years is far too long to protect works that have gone fallow. But, for characters like Mickey and Winnie, that are still being regularly utilized by their creators, it’s not obvious to me why the protection shouldn’t exist indefinitely. We’re a little more than a decade from the original superheroes, Superman (1938) and Batman (1939) coming into the public domain. Why Disney and DC should have to compete against their own characters—let alone the confusion caused by what’s cannon and what isn’t—isn’t obvious to me.
But, again, most seem to disagree.
“Now, the audience is going to set the terms,” said Cory Doctorow, an author and activist who advocates for broader public ownership of works.
Jan. 1, 2024, has long been circled on the calendars of public domain watchers, but some say it serves to show how overlong it takes for U.S. works to go public, and many properties with less pedigree than Winnie or Minnie can disappear or be forgotten with their copyrights murky.
“The fact that there are works that are still recognizable and enduring after 95 years is is frankly remarkable,” Doctorow said. “And it makes you think about the stuff that we must have lost, that would still have currency.”
Other properties entering the U.S. public domain are Charlie Chaplin’s film “Circus,” Virginia Woolf’s novel “Orlando” and Eugene O’Neill’s play “Long Day’s Journey into Night.”
The current copyright term passed in 1998 brought the U.S. into closer sync with the European Union, making it unlikely Congress would extend it now. There are also now powerful companies, including Amazon with its fan-fiction-heavy publishing arm and Google with its books project, that in some cases advocate for the public domain.
“There’s actually more pushback now than there was 20 some years ago when the Mickey Mouse act was passed,” said Paul Heald, a professor at the University of Illinois College of Law who specializes in copyright and international intellectual property law.
In some instances, the U.S. goes well beyond Europe, and maintains copyright on work that is already public in its country of origin, though international agreements would allow the U.S. to adopt the shorter term of other nations on work produced there.
The books of George Orwell for example, including 1947’s “Animal Farm” and 1949’s “1984,” are now public domain in his native Great Britain.
“Those works aren’t going to fall into the public domain in the United States for 25 years,” Heald said. “It would be literally costless for Congress to pass a law saying, ‘we now adopt the rule of the shorter term,’ which would throw a butt ton of works into the public domain over here.”
At something called the DISinsider, Jordan Simmons (“Understanding Copyright: It’s Easier Than You Think!“) provides more background before delving more into the Steamboat Willie case. He points to the release this summer of the 9-minute short “The Wonderful World of Mickey Mouse: Steamboat Silly.”
Some online theorised that this was Disney trying to hold onto the copyright, but that makes no sense. Steamboat Silly doesn’t affect the copyright of the original Steamboat Willie in any way. That being said, the slightly updated character design used in the new animation is protected under the copyright of the Steamboat Silly cartoon. If you think that Disney has designed the new Steamboat Mickey to be different but as close to the original as possible, so they can try and catch out people who are looking to use the Steamboat Mickey design… to be honest that is a fair assumption.
And then there’s this:
Mickey Mouse is not copyrighted because you cannot copyright characters. However, Mickey is protected because Steamboat Willie is copyrighted and once it expires everything within Steamboat Willie is free to use – that’s if trademarks didn’t exist. Unlike copyrights, trademarks can last forever provided it’s still being used by their owner. Mickey Mouse is trademarked by Disney and is still in use so they will retain the rights to make money from him. They can also use their legal power to halt any infringement on their trademark. You’ll be free to use his Steamboat Willie design, but calling him Mickey Mouse will probably be off-limits.
A lot of people are frightened of the concept of Mickey Mouse entering the Public Domain, but what if I told you that he’s not even the first Disney character to enter the Public Domain? Oswald the Lucky Rabbit has been in the Public Domain since the 1950s and pretty much nothing has been done with him because Disney owns the trademark (after acquiring it from NBCUniversal in 2006).
Presumably, there’s more incentive to use Steamboat Willie than Oswald because the former is considerably more famous. But, again, I’m sure Disney will use its heft to make it difficult.
At Cartoon Brew, Jamie Lang (“What Happens When ‘Steamboat Willie’ Hits The Public Domain In 2024?”) notes:
After expiration, anyone will be able to screen the original short without permission from Disney. It can also be sold by third parties, although Disney has already made the film free online, so sales will likely be minimal. The film and its characters can also be used by anyone wishing to feature the characters in original stories or artwork.
But, again, there’s the matter of trademark:
Disney can and almost certainly will still be very protective of the Mickey Mouse character, as it still owns the trademark. A trademark can be renewed indefinitely and is meant to prevent marketplace confusion. What that means is that any public-domain use of the Steamboat Willie characters cannot be perceived as coming from the trademark holder, in this case, Disney. In any case where there is a possibility that consumers could assume that Disney is behind the use, expect the company to act.
So, it’s quite possible that the impact of Steamboat Willie entering the public domain will be practically nil.