Megan J. Abner, Associate
January 1, 2024, this year’s so-called “public domain day,” marked the partial release of the world’s most famous mouse into the public domain. Disney’s iconic “Steamboat Willie” and lesser-known “Plane Crazy,” both released in 1928, marked Mickey Mouse’s public debut (as well as that of his love interest Minnie and his arch-nemesis Pete). At the time, Mickey appeared more simplistic (and frankly less cute) than the mouse of today, boasting a more rat-like appearance, eerily pupil-less eyes, and ungloved clubs for hands.
Disney never owned the idea of a cartoon mouse with a high-pitched voice getting up to shenanigans, but it did hold a monopoly over their artistic expression of these ideas since these pictures’ release in 1928. As of this year however, Disney’s copyrights over “Steamboat” and “Plane” have expired, and their Mickey Mouse has been freed into the public domain. As a result, this specific iteration of the iconic character is free for the American public to exploit as it will, including for commercial purposes.
Under U.S. copyright law, classic Mickey was originally afforded 56 years of federal protection, extending to 1984. In 1978, due in no small part to Disney’s extensive lobbying efforts over the decades, Congress expanded federal copyright protections by 20 years, extending Mickey’s protection until 2004. However, in 1998, America’s favorite mouse house (along with other studios, music publishers, authors, and publishing houses) struck again, and Congress’ “Copyright Term Extension Act,” colloquially known as the “Mickey Mouse Protection Act,” extended federal copyright protection once again by another 20 years. Finally, on January 1, 2024, Disney’s monopoly over Steamboat Willie’s classic mouse expired for good.
While classic Mickey may be free to use, it is extremely important to note that Disney’s redesigns of the mouse are not. Disney’s 1940 smash hit Fantasia marked the first significant departure from Mickey’s original design, and this cuter, colorized, more modern depiction of the mouse will remain protected until at least 2036.
Another important consideration regarding Disney’s intellectual property in the iconic mouse is its myriad trademarks. Even though creators may now publish works that include or are inspired by Steamboat Willie’s Mickey, they must still be careful not to infringe on any Disney trademarks by either (i) creating the impression that a work is endorsed by Disney, or (ii) producing merchandise containing an active Disney trademark. It is key that creators (and their attorneys) understand that they cannot produce anything that would be confusingly similar to goods and/or services offered by Disney.
Since at least 2007, Disney has endeavored to shore up its trademark rights, rather than copyright, in its 1928 Mickey Mouse design. As early as the theatrical release of Meet the Robinsons, Disney introduced a Steamboat Willie logo in connection with its animation studios, likely in order to demonstrate its continuous use of the property for trademark purposes.
It seems intuitive that Disney would attempt to exert its trademark rights to squash creators’ copyright stemming from the newly public works. However, as to what the future holds, Winnie the Pooh’s release into the public domain in 2022 is instructive. Seemingly immediately upon the lapse of Disney’s copyright over the original Winnie the Pooh story, horror-slasher film Winnie the Pooh: Blood & Honey was announced. The film featured “Pooh and Piglet as the main villains going on a rampage.”[1] To the shock of some, the twisted film was released without a word from Disney itself.
Put simply, Disney did not pursue the filmmakers for trademark infringement because “trademark rights cannot be used to block the freedoms that the expiration of copyright allows, such as using a public domain character in a new creative work.”[2] It is also important that the film did not include any depictions of, or scenes inspired by, any Winnie the Pooh content that remained protected by Disney’s copyrights.
Clearly, Mickey’s unshackling leaves plenty of room for new creative works in video, literature, and beyond. While Blood and Honey’s director may still be shocked that the film didn’t elicit the expected legal action from Disney, it is undeniable that “[t]he existence of the movie is important because it demonstrates that filmmakers can use children’s characters in horror without fear of being sued, opening the way for more experimentation in this genre.”[3]
Now, given the release of Disney’s expression of classic Mickey into the public domain, the door is open for a wealth of new creative works embodying the geriatric mouse, provided that these works do not infringe on newer Mickeys. Already, we can see glimmers of what might be in store for poor old Mickey. Announced on January 2, 2024, horror film MICKEY’S MOUSE TRAP will apparently rip classic Mickey from the animated world into ours, sending the mouse on what seems to be a murderous spree while Steamboat Willie plays on screens scattered thought the trailer. This announcement comes one day after that for Nightmare Forge games’ “Infestation 88,” apparently a similar concept in the form of a PC game. Clearly, while some are happy to hop on the click-bait horror genre bandwagon, we can certainly expect to see Disney’s favorite mouse setting off on some previously unauthorized and exciting adventures.
[1] K.J. Yossman, Winnie the Pooh: Blood and Honey’ Director Teases Slasher Film Plot: ‘Pooh and Piglet Go on a Rampage,’ Variety (May 26, 2022) https://variety.com/2022/film/news/winnie-the-pooh-blood-and-honey-director-1235278405/ (internal quotations omitted) (last accessed January 2, 2024).
[2] Jennifer Jenkins, Mickey, Disney, and the Public Domain: a 95-year Love Triangle, Duke Center for the Study of Public Domain https://web.law.duke.edu/cspd/mickey/ (last accessed January 2, 2024).
[3] Rachel Ulatowski, Winnie-The-Pooh: Blood & Honey Director Still Shocked Disney Didn’t Sue Horror Movie: “The Company Is So F—-ng Massive,” ScreenRant (Oct 28, 2023) https://screenrant.com/winnie-the-pooh-blood-honey-disney-sue-no-director-response/ (last accessed January 2, 2024).
