Laypeople and lawyers alike are watching closely to see what’s going to happen next with characters lately controlled by Disney as they pass into the public domain.
With the recent media storm over the latest and most bizarre entree into the world of Winnie the Pooh, the low-budget slasher movie Blood and Honey, interest in copyright and trademark law, and its duration, has reached a fever pitch. But how will the House of Mouse deal with the loss of the Steamboat Willy version of Mickey Mouse, the seminal character on whose skinny shoulders the Disney entertainment juggernaut was built, from its library of intellectual property?
A Brief Primer on Copyright and Public Domain
Copyright was originally enshrined in US intellectual property law to give creators and their heirs a limited monopoly on profiting from their creations for a prescribed period of time.
At the time Steamboat Willy first introduced Mickey Mouse to the world, US copyright was only valid for 28 years. On the first day of January following the 28th anniversary of the copyright being filed, the copyright expired, and the creative work in question entered the public domain. (This was later amended to 75 years, and then raised to the current ceiling of 95 years, thanks largely to lobbying by the Walt Disney Company and celebrities including the late Senator Sonny Bono, also of Sonny and Cher fame. Click here for a more detailed discussion of how this came to be.)
When a work enters the public domain, anyone can use it as they wish. They can put it on apparel, do their own riffs on the work, change, adapt, transform, and utilize it any way they see fit.
Want to do a rap over Mozart’s Requiem Mass in D Minor?
Knock yourself out.
Want to put a beloved cartoon character on a T-shirt without paying a licensing fee?
If it’s in the public domain, as a writer acquaintance of mine says, “You do you, Boo-boo!”
Recreate the Mona Lisa in the hypercolor style of Andy Warhol?
Sure, why not?
Except Things aren’t Quite That Simple.
When a work passes into the public domain, other works that derive from that work are still protected by copyright. For example, that rap you want to do over Mozart’s Requiem?
You’d better not use the Boston Symphony Orchestra rendition! While the music, and the piece, are public domain, the performance of that piece by the Boston Symphony Orchestra is decidedly NOT.
You’d have to find a recording of it that has already passed into the public domain, or create your own, to ensure that you wouldn’t be violating someone else’s IP rights.
The same applies to the Mona Lisa. While the painting itself is firmly in the public domain, you can’t just take any old picture of it, slap it on a canvas, and parade it around as your own work. You’d have to either take your own picture of it, something which I’m given to understand is heavily frowned upon by the officials of the Louvre Museum, or again, find a picture that had already passed into public domain or was released under a creative commons license that allows for commercial and noncommercial use.
In the latter case, this means the original producer of the IP in question essentially donated the work to the public domain and waived any rights to the image in doing so.
An example of this is the images I use in these posts.
They are all sourced from Pixabay.com under a license that specifically permits commercial and noncommercial use with or without attribution.
The only exceptions to this policy are ones in which I am very careful to specify and note otherwise, such as when I use drawings from patent filings to illustrate a point. As these documents are a matter of public record and interest, recreating and publishing them violates no laws.
But Steamboat Willy is a Very Different Matter.
Although the seminal character that evolved into the most-loved mouse in the world is poised to enter the public domain on January 1st, 2024, later versions and iterations of Mickey Mouse still remain under Disney’s control.
The same applies to Winnie the Pooh: only the original A.A. Milne rendition of the tubby little cubby is fair game.
The versions Disney has created over the years starting from the seed character, such as his signature red tee and ubiquitous “hunny” pot, are still under copyright. As these various versions and iterations run up against the 95-year copyright protection limit, their unique features and identifying characteristics will of necessity become part of the public domain.
Except there’s a Zombie in the Room…
Disney still controls the trademark on the name “Mickey Mouse,” as well as many of the later design elements that became canonically associated with the character and thus serve as secondary brand identifiers.
This “zombification” of rights means that, although you can use the Steamboat Willie imagery and character design for Mickey without ramifications once it officially enters public domain, you can still get in serious legal trouble for using his name without securing a proper license from Disney. Disney is notorious for going to lengths that many people find outrageous to protect their IP rights, such as slapping a chain of Florida day care centers with cease-and-desist orders for using images of Mickey, Minnie, and other beloved Disney characters without permission.
From a legal standpoint, of course, Disney’s stance only makes sense. Any unauthorized reproduction of intellectual property that is allowed to go unchallenged presents a host of problems for the IP holder. These challenges include:
- Diluting the brand’s marketing and financial power
- Making it easier for interlopers to create unauthorized knockoff versions of the original IP without consequences
- If allowed to continue, the owner could find their IP rights curtailed or negated in court, meaning they are effectively left with nothing and the IP is basically ruled public domain by the courts due to the owner’s inaction or lack of vigilance in securing and protecting their rights.
Disney is notorious for its vigorous protection of its intellectual property, which means users of even the public-domain versions of characters it has controlled in the past will have to proceed with caution when using these characters.
Whether you love or hate the idea of Winnie and Piglet going all Michael Meyers, the way in which Blood and Honey was executed (if you’ll pardon the pun) was a masterclass in how to navigate the countervailing interest of the public domain against characters whose later variants and versions are still protected by the copyright of an entertainment colossus.
So Could we see Steamboat Willy Going Stabby in 2024 and Beyond?
Sure, it could be a thing. The only certainty about what happens once a piece of IP enters the public domain is that ANYTHING can happen!
As long as future users don’t fall foul of the House of Mouse’s existing IP claims while they’re making ANYTHING happen, that is…
About John Rizvi, Esq.
John Rizvi is a Registered and Board Certified Patent Attorney, Adjunct Professor of Intellectual Property Law, best-selling author, and featured speaker on topics of interest to inventors and entrepreneurs (including TEDx).
His books include “Escaping the Gray” and “Think and Grow Rich for Inventors” and have won critical acclaim including an endorsement from Kevin Harrington, one of the original sharks on the hit TV show – Shark Tank, responsible for the successful launch of over 500 products resulting in more than $5 billion in sales worldwide. You can learn more about Professor Rizvi and his patent law practice at www.ThePatentProfessor.com
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