When the clock struck midnight on the first day of 2024, one of the most anticipated Public Domain Days was finally reached and the first iteration of Mickey Mouse was released into the public domain in the US. This meant that, after 95 years and several changes in the US copyright regime, the first ever representation of the most iconic mouse in the entertainment sector became freely available to anyone who wished to commercially reproduce it. Indeed, only a few hours had passed before a series of reproductions of the black-and-white mouse were released, ranging from trailers of horror movies to creative YouTube videos remixing the famous cartoon. It is not the first time a famous Pop Culture character, and the work in which it first appeared, has fallen into the public domain, capturing the attention of copyright aficionados. In the past few years, the same happened to Sherlock Holmes, to Winnie the Pooh and, in 2021, to F. Scott Fitzgerald’s defining novel of the 20th century, The Great Gatsby. The fall into public domain of these works were almost immediately followed by new versions – horror movies being the most popular ones – reprints and new adaptations, as is the example of the 2024 Broadway musical based on Fitzgerald’s novel.
Returning to Walt Disney’s creation, the 8-minute black-and-white short, entitled Steamboat Willie, was released in 1928 and introduced one of the most iconic characters in the entertainment sector, Mickey Mouse. Since then, the short has been branded as one of the ‘greatest cartoons of all times’ and the character has influenced several forms of creative media, including art.
From a legal point of view, the cartoon also became the basis of several copyright changes and controversies.
In the United States, the current copyright system applies to creative works in order to incentivise and reward the authors that make available and disseminate their creations, upon consent, to the public for a limited amount of time, generally 70 years after the author’s death or 95 years after publication, after which the same works become available to the public by entering the public domain.
However, when Mickey Mouse was created, US copyright law allowed for a 28-year protection extendable to a maximum of 56 years in total. Under the Copyright Act 1909, the copyright protection assigned to Steamboat Willie should have expired in 1984. To prevent this, Disney embarked on an important lobbying campaign to influence the US Congress into modifying the Copyright Act. Consequently, in 1976, the US Congress passed a new piece of legislation. The legislation granted works that in 1978 were not yet in the public domain an extension in relation to their copyright term, which was extended to 75 years after the publication date of the creative work (section 302 Copyright Act 1976). This amendment also represented the first step on the side of the US to harmonise its copyright laws to the international copyright system, although it would take the US another decade to ratify the Berne Convention. At this point in the history of the US copyright system, Mickey Mouse’s protection would have lasted until the end of 2003. As a consequence, foreseeing the 2003 deadline, the lobbying campaign was resumed and through the Copyright Extension Act 1998, which earned the derisory moniker of ‘Mickey Mouse Protection Act of 1998’, the fictional character’s entrance into the public domain was postponed to the beginning of 2024. Once more, a few years later, the entertainment company lobbied to have Mickey Mouse’s copyright further extended, but this time the general interests afforded by the copyright regime, namely the fact that economic rights should not last forever, prevailed. As a result, the work was finally made available to everybody on 1 January 2024.
While the history surrounding the influence of Mickey Mouse on the evolution and development of the term of protection for copyright in the United States is in itself fascinating, similarly interesting are the following takeaways. First of all, while in the United States Steamboat Willie has just entered the public domain, it could be possible for the cartoon to still be under copyright protection in certain jurisdictions. Indeed, it has been argued that Mickey Mouse is not yet entering the public domain in some countries that allow for a life-plus-70-year term of protection. In any case, this only relates to rare examples, as the first representation of the mouse is in the public domain in jurisdictions that follow the ‘rule of the shorter term’ for US works. These also include jurisdictions that generally follow the life-plus-70-years protection term, including the UK and the majority of EU Member States.
Secondly, the only version of Mickey Mouse that has already entered the public domain is the one associated to the 8-minute short released in 1928. The following versions, including the majority of the animated versions in colour, including The Band Concert (1935) and Fantasia (1940), and the more recent 3D animations, are still protected under copyright.
However, debate can be raised in relation to alternative ways to protect the economic rights of iconic characters.
In the case of Mickey Mouse, trade mark law could be relevant. Indeed, in the late 2000s, the production company started to take the initial steps to protect the black-and-white mouse under trade mark law, by reproducing a few seconds of the cartoon at the beginning of the majority of new Disney motion pictures, as noticeable in Meet the Robinsons (2007), Tangled (2010), Frozen (2013) and, more recently, Encanto (2021). By doing so, in September 2022, the animation studios successfully acquired trade mark protection in the US, after having applied in February 2022. The mark was registered as a trade mark representing Disney Enterprises, Inc., in relation to the category of entertainment services, particularly for the production and distribution of motion pictures. Consequently, while the 8-minute short is, in theory, in the public domain, Disney could still be able to enforce, under trade mark law, any perceived infringement because the connection between the company and the character is strong and closely linked to the success of the company, and unlikely to be identified as an independent product.
It is, therefore, important to remember that copyright and trade mark law protect different scopes and functions. They also have different legal formalities, including the fact that trade mark protection could potentially last as long as the mark is used in relation to the commercial activity it identifies, while copyright is limited in time. Consequently, in the specific case of Mickey Mouse, the distinctiveness in the portrayal of a few seconds of Steamboat Willie still has the power to prevent, in theory, unauthorised uses in a commercial setting as long as Disney associates the mark to the production of motion pictures. This can happen because in the United States, it is possible to conceive dual protection – copyright and trade mark – in relation to their inherent emphasis on creativity present in the work. Less clear is whether the registration of a creative work as a trade mark aimed at the commercial exploitation of a very successful product could affect the general interests of public domain. This specific point has been raised by academics and commentators globally, as well as in landmark cases. In Europe the EFTA Court, in the late 2010s, remarkably decided that, while a work of art may function as a trade mark, if the application for a trade mark is aimed at preventing the entrance of the same work into the public domain due to its importance and to maintain control of the same work, trade mark protection will contradict the fundamental interests behind the limitation of copyright, thus undermining the value of the public domain.
Another aspect that can be considered relates to the question of whether fictional characters can be protected by copyright independently of the work they originated from. This specific issue was recently considered in the UK High Court Shazam decision where it was held that fictional characters can be protected as literary works. In contrast with the UK, US courts have traditionally been reluctant to recognise such protection, because of the understanding that the protected works serve to enrich the public domain as building blocks of commerce and art, by allowing a general indulgence of copying. Moreover, it has been argued that it is not always clear whether protection should include all the later versions of a fictional character. Consequently, in the specific case of the US, as addressed in the Batmobile case, the ‘story being told’ test is paramount to assess whether protection can be assigned to individual characters. Indeed, only the characters that are clearly delineated and around which the story revolves are eligible for copyright protection, without falling within the category of stock characters. A character must have both physical and conceptual qualities, it must be original and have sufficiently distinctive, consistent and widely identifiable traits recognisable in every context it appears, and it must stand out. In applying these conditions to the first Mickey Mouse illustrations, it can be noticed that they are not satisfied because, since its first release, the character has undergone substantial development and changes, thus failing the consistency requirement.
To conclude, the fact that Mickey Mouse, as a character, represents an iconic aspect of both the entertainment sector and the 20th century intellectual property landscape of the United States is indisputable. Nonetheless, its copyright protection, or at least the one associated with its first version, has run its course. Allowing for a possible unlimited protection of its associated economic rights could defeat the main principles, including the public domain, linked to the same copyright regime that Disney had helped shape.
Disney, Mickey Mouse – Steamboat Willie (1928), public domain via Wikimedia Commons.
A. A. Milne and E. H. Shepard, Winnie the Pooh (1926), public domain via Wikimedia Commons.