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Disney’s Death Grip, Mickey Mouse, and Public Domain

Disney’s Death Grip, Mickey Mouse, and Public Domain

Mickey Mouse might be the most valuable fictional character ever created. He’s in countless shorts, features, shows, and comics, and he is the face of one of the world’s biggest entertainment empires: Disney. The company and the mouse are effectively synonymous, with the fictional rodent serving as an instantly recognizable symbol across the world. Thus, it’s not surprising that Mickey Mouse is one of the most zealously guarded pieces of intellectual property in entertainment.

Technically, Mickey Mouse should have entered public domain a long time ago. The year 1984, in fact, was the original year when Disney would have lost ownership of Steamboat Willie (the mouse’s debut), but Disney’s infamously aggressive legal team lobbied Congress to change U.S. copyright law to allow them to keep exclusive control for longer. In 1998, they did it again, convincing lawmakers to pass the “Mickey Mouse Protection Act” (officially, the Sonny Bono Copyright Extension Act), which increased the maximum copyright length to almost a full century.

These efforts to make the system work in Disney’s favor have been accompanied by lawsuit after lawsuit leveled against seemingly harmless uses of the character, such as threatening to sue Florida daycare centers for painting Mickey Mouse as wall decorations in 1989.

Yet not even the almighty Walt Disney Company can change the rules forever. At the moment that 2024 began, Steamboat Willie entered public domain. Although subsequent adaptations of the character still temporarily belong to Disney, anyone can legally use the original Mickey Mouse however they want. A few have already begun, including one filmmaker who, taking a cue from last year’s Winnie the Pooh: Blood and Honey, has announced the development of a Mickey Mouse slasher movie.

But this may not stop the incessant lawsuits. Harvard professor Rebecca Tushnet told Harvard Law Today that “it is quite likely that Disney would sue you for putting an image from a public domain work on a lunchbox. Disney should probably lose that, but it’s going to fight very hard.”

Tushnet added that part of the reason that courts haven’t stopped Disney from suing lawful users of public domain characters is simply this: Very few iconic intellectual properties have entered the public domain in the last 20 years.

That is all about to change, though, because in the next 15 years, a slew of other famous characters will follow suit—perhaps the only characters that come close to rivaling Mickey Mouse’s brand value and widespread recognition: Superman, Batman, Wonder Woman, and the Joker. While fans of DC Comics may be eagerly anticipating the mid-2030s, the entertainment industry is not. Variety, one of Hollywood’s most prestigious trade publications, ran an article that, despite its billing under the “News” tab rather than appearing as an editorial, takes a staunch position on the issue of the public domain.

The article kicks off with a dig at comic book–movie director Zack Snyder before addressing the topic at hand: the lapse of copyrights on characters. The piece unambiguously declares this occurrence to be “a sad fact.” It goes on to outline the strategies that DC will likely use to retain control of these characters, even after the law of the land has left their corner. These include significantly altering the character to render the original heroes obsolete, “conditioning” the public to view independent works in a negative light, and weaponizing trademark law to block outsiders from using public domain characters’ names.

Notably, the article does not quote any sources that advocate for the public domain, sticking primarily to current and former DC or Warner Bros. employees.

Regardless of the entertainment industry’s frantic attempts to keep control over fictional characters for as long as possible, to many legal experts, the case for the public domain is strong. Tushnet continued in her interview:

Given that most of the profit comes in the first few years after a work’s publication, the copyright term is already way too long. In my ideal world, it would be much shorter, and then after a reasonable opportunity to exploit the copyright, the work would enter the public domain. But even without that, if we have lots of freedom to react and to use works in the public domain without worrying about being sued for infringement, we can have a successfully functioning system. So, my ideal is to recognize creative freedom, including the freedom to make your own version of things in the public domain.

As more and more ultra-valuable properties like Winnie the Pooh, Mickey Mouse, and Superman gradually shift into the public domain, the debate over this important legal concept will surely become front and center. Studios like Disney and Warners Bros. may continue the dubious tradition of asking Congress to intervene on their behalf, but any legal disputes will doubtless be accompanied by cultural conversations about who really should have the opportunity to adapt and reimagine time-honored works of fiction.

This issue may become part of a larger cultural shift as well in the years to come. Last year saw two lengthy, high-profile labor strikes in Hollywood, and public opinion tends to favor creatives and performers over megalithic movie studios. The #ReleaseTheSnyderCut movement, inspired by the director that Siegel so puzzlingly maligned in her public domain piece, subjected Warner Bros. to a protracted PR siege. The siege gave the studio almost no choice but to distribute the semi-mythical director’s cut of Justice League in March 2021, four years after the movie’s butchered theatrical release. The underdog story of a maverick filmmaker overcoming corporate executives to finally see his vision shared with the world was irresistible to fans across the globe.

By and large, legacy movie studios seem to be losing audience support. Openly biased Variety articles and obsessively zealous litigation notwithstanding, the issue of famous characters entering the public domain may be the next log on the fire underneath them. That flame will only get hotter as the public considers the question: Who deserves to control the stories, characters, and creative works that we love? Corporations or individual artists?

Image credit: Public domain

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Ethan J. Connor
Ethan J. Connor
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  • Avatar
    TeachEm2Think
    February 7, 2024, 4:50 pm

    Ho-wood and Disney have been taken over by rodents. I have not given them a dime in a very, very long time and that personal boycott shall continue.

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  • Avatar
    OBloodi Heille
    February 9, 2024, 4:47 am

    The real solution here is to actually shorten copyright substantially, to something closer to the original terms set out by the Founders. In a digital age, where the use of, and flow of, new ideas and adaptations of existing ideas is where all new wealth comes from… so extensive copyright periods actually prevent substantial new wealth creation.

    "But what about the companies which 'own' the properties?"

    Simple — create a special legal usage for the term "official" — "Official Mickey Mouse Merchandise".

    Make it work much like Trademark — have no end period, as long as the owner renews it every 'x' years. This allows one to create something which has the imprimatur of the original creator (or their assigns), while keeping the flood of new ideas open.

    It also causes the "owner" (e.g., the official representative) of the ideas to carefully vet those things they put their "official" sig onto. Too much crud and they devalue their marque.

    I am saying that, if I want to create a Harry Potter joke t-shirt, I should be able to do so — 25y seems like more than enough for JKR — she is, or was, after all, the richest woman in the UK after the (late) Queen of England, and is in line with the 1831 Copyright act of 28y — and if it's a good enough joke, then the "official" moniker can be applied to it for a cut of the sales. Or I can just go it alone if I don't think that would benefit me — e.g., they are asking for too much of a cut.

    There are some really really good Calvin & Hobbes mashup shirts — that mash up C&H with Back To The Future, Harry Potter, and Doctor Who. There is no rational reason these should be "bootleg" and can't be sold in stores.

    In the longer term, there needs to be a notion of a "registry of ideas", which can then get a metric of their use and re-use — e.g., how many C&H shirts have been sold? How many prints? How many animated shorts? And so forth — and a general slush fund which disperses monies collected from various suitable sources (e.g., blank media for much of it) — 100ths of pennies on the dollar per use — to whomever owns it. And that can be done for the life of the creator (only). No passage on to other assigns, like kids or especially deathless corporate entities.

    The more successful an idea is, the more it would earn, and the payout would be automatic and not subject to contract negotiations.

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