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.
And this:
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.
The idea that iconic characters such as these should remain under copyright protection is a very American and capitalistic viewpoint.
Consider Amazon corporation. Jeff Bezos had a great idea, and has nurtured that idea for a couple of decades into wild success. But there are tens of thousands of Amazon employees who have contributed countless good ideas and innovations in exchange for their weekly pay along the way. At some point do we stop rewarding Bezos so handsomely for his idea in 1999? At some point is Amazon’s ongoing success a product of the people who make it what it is – the workers, and heck – even the customers?
Similar Disney. Walt died in the mid-1960s. Since that time numerous employees and executives – and customers, have maneuvered the business into what it is today. Do we let Disney keep a copyright forever on Mickey because they continue to exploit it for profits successfully, or does it become a character like Rumplestiltskin which is part of our folklore?
I tend toward the socialist viewpoint here in which nobody owns anything (we certainly can’t take it with us) and that we all own it together, and our job as living people is to care for it and nurture it and make it be as great as it can be.
I think that a guy like Bezos with his $100 billion has been rewarded plenty for his contributions to Amazon – in fact I think $500 million would have been a completely fine ceiling for his wealth, above which we’d tax it 100%.
But I’m in the tiny minority, especially in a country like America where money rules all.
I don’t have strong views here, but I will counter with Tarzan, Sherlock Holmes, Robin Hood, and countless other characters that have thrived in the public domain. (Indeed, one of the ironies of this whole conservation is that Disney’s early hits, such as Cinderella, Snow White and the Seven Dwarfs, et al, were all public domain stories-).
I think that the problem is that in a more just world, the creators of these characters would have been their owners, not corporations that never die.
@Steven L. Taylor: But the original creators had long since producing new works with those characters. Marvel, DC, Disney et al continue to utilize their works.
Steamboat Willie drug smuggler anyone?
@Kathy:
A full movie detailing the events lead up to this video. Open with senior intelligence officers announcing they had a lead, tracking a blip on wall-size radar screens. Cut to: William “Steamboat” Mortimowski in a dimly lit submarine command room, spinning the rudder wheel and whistling his little tune. Quick cut back to coast guard operatives getting briefed on the mission “Many of you might not be coming back. We are dealing with one sick, twisted son of a bitch tonight.” Star swipe back to William still whistling that same tune, but this time slower, with menace. Time has clearly passed. He hears a pounding on the hatch above him, indiscriminate loud voices yelling something in English. More pounding. He whistles one last mournful note as he steps away from the wheel. As the hatch above him opens and light begins pouring in, we cut back to the coast guard officers who are opening the hatch. From their point of view we see one brief flash of light accompanying a loud bang. One officer now has a splatter of blood on his left cheek. Peering inside, he quickly turns away, vomiting over the side of the boat.
It’s over. “Steamboat” William’s reign of terror in the gulf is over, but the damage he has done to countless lives will live on for many years.
I like to remind myself that copyright is a thing we invented out of nothing, about a century after the printing press became widespread. The purpose, at the time, was to promote a system that would encourage more publication. It’s not clear that permanent ownership of IP would do that. Probably the opposite.
@James Joyner: Sure, but the point is that creation is one thing, while writing new stories is another. If Bob Kane and Bill Finger had owned Batman and if the copyright was linked to them, that would have changed a number of dynamics (including making Kane and Finger a lot more money, which strikes me as a more just outcome than what transpired).
@James Joyner: I think you are overlooking the whole purpose of copyright. In times past there was no copyright and the very idea was considered absurd. Someone could own land or a horse or a tea kettle, but how could you own an idea? Legislatures invented the idea of copyright to give individuals an incentive for creative works. The key word here is “individual”. I don’t see any reason why a copyright should outlast the life of the actual creator. Somehow, and invented concept to encourage creatives is becoming as fundamental to our legal system as property rights or universal sufferage.
The final except is the really key thing to this discussion:
Without another extension of copyright periods, Trademark lawyers are about to make BANK over the next two decades as a LOT of early forms of major IP characters like Superman, Batman, and Captain America go into the public domain in their original forms–not to mention many of the core Loony Tunes characters and others.
I’m not well-versed in this aspect of the Law, but I suspect there isn’t a lot of good case law about what to do when someone is creating new stories with trademarked characters (versus just repackaging and distributing existing media).
Also:
@Steven L. Taylor:
Right! This is where things get really interesting–especially if you look internationally at how IP is handled outside the US. For example, in the UK, in many cases original creators maintain the rights to their creations versus who they were doing the work for. Hence why Terry Nation’s estate gets residuals from and limited control over when the Daleks appear in Doctor Who.
Copyright law is really not geared for corporately owned IP.
BTW, in your case, Bill Finger in particular would have done especially well as pretty much everything but the name when it came to Batman was his work. My favorite representation of this come from the great cartoonist Ty Templeton: https://benjaminherman.files.wordpress.com/2015/10/what-if-batman-by-ty-templeton.jpg
The rapid development of technology is going to make all this copyright business moot. You will tell your AI that you want an original James Bond movie with the 45 year old Sean Connery as James, the 30 year old Marlene Dietrich as the romantic interest, and the 75 year old Donald Trump as the villain, and this takes place in Berchtesgaden at Christmas. You and your family watch this right after unwrapping the presents. Who’s going to stop you?
I’m with Steven on this. Trademarks are fine, but I do not like the idea of anyone – including corporations – holding indefinite copyright.
Edited to add: And one of my soapboxes is the need for patent, copyright, and trademark reform.
Oswald the Lucky Rabbit is different. Disney lost the rights to him way back in the day to Charles Mintz, that’s why Mickey was invented in the first place. It was actually done the famous train ride home you always hear about when historians talk about Disney’s life, his ambitions and plans…. and it was all him failing to get back his main source of income due to these kinds of issues. Disney was so mad about it that he went to incredible lengths to keep Mickey and all the other characters in house as long as possible, hence the problem we have now. Go watch the PBS American Experience’s two-parter on Walt Disney for the story as it helps flesh out a lot of the actions Disney ended up taking later in life and the company he founded followed after his death.
Meanwhile Oswald languished because his cartoons weren’t as good as the competing Mickey ones and he fell out of favor. Like Felix the Cat, he survived in comics for a while to earn his keep. Fast forward to 2006 where Universal ended up giving Disney back the trademark for Oswald in exchange for Al Michaels and a few other things, all because they wanted to create a video game Epic Mickey. Oswald is the main antagonist so they got new material to merch (and a decent game too!)
(Disney history lesson over or I’ll be here all night 🙂 )
Surely I am not the only person eager to see “Long Day’s Journey Into Night” performed by Steamboat Willie?
(It is sad that Gilbert Gottfried passed, as if you are looking for a non-Mickey voice, his would be perfect)
Who can forget Mickey Rat created by Robert Armstrong. I thought for sure there was a Disney lawsuit about this parody however I can’t find anything.
Could be I am confused as I did find reference to a Disney lawsuit against Dan O’Neill of
Odd Bodkins fame and others.
Apparently the court did not answer a question about parody to O’Neill’s satisfaction.
What is SOME?
@mattbernius:
Or would he have been impoverished after being sued by the Johnston McCulley estate on the grounds that Batman is a derivative work of Zorro? Would McCulley in turn be sued by the Baroness Orczy estate for being a derivative of the Scarlett Pimpernel?
Perpetual copyrights eventually turn culture into a minefield where no new art can be created.
@Gustupher:
You can already find an AI app that will do this for you.
Social media has been getting lulz using AI to pump out covers of classic 90s ballads (“Unbreak My Heart,” “My Heart Will Go On,” “I Will Always Love You”) sung in the voices of Spongebob characters, Arnold Schwarzenegger, Barack Obama etc.
No, they aren’t. Their creators are dead. Corporations are not creators.
Others have poked at this above, but I think you are making a fundamental error in smuggling in our intuitions about what rights the creators of art should have and applying them to
soulless profit millscorporations run by people who had nothing to do with the creation and whose profits mostly go to people unrelated to the creators.For profit-making purposes, copyright should be more like a patent — a temporary grant of exclusive use that rewards innovation, but does not stifle long-term competition. From that perspective, 95 years is absurd.
@DrDaveT: I missed the opportunity in my comment to note that this is a special case of a broader set of issues relating to the transferability of intellectual property. I can see the argument in favor of saying that intellectual property belongs to the individual human creator(s) and cannot be transferred, though certain other parties (employers or patrons who funded the creation, heirs, perhaps others) might get automatic licensing rights.