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New Year's Day is now also Public Domain Day, when every year after copyright expires a new treasure trove of artistic vintage creations becomes available for everyone to use, adapt and exploit. And at least symbolically: The big game this year is the first cinematic versions of Mickey Mouse – the poster boy for expanded copyright protection.
To be clear: For most, it's not even your dad's Mickey and Minnie Mouse entering the miracle market of adaptation on Monday. The public has been granted the right to creatively use the groundbreaking black and white Disney characters exclusively as they appear in the 1928 animated film “Steamboat Willie” and the silent version of the 1928 short film “Plane Crazy.”
This co-optable version of the villainous Mickey is described by some scholars as “rat-like” and lacks his familiar elegant appearance and clothing. But this early Mickey, as portrayed in the Jazz Age by Walt Disney and Ub Iwerks, is all yours: No gloves, no shirt – full service.
Jennifer Jenkins, a law professor and director of the Center for the Study of the Public Domain at Duke University, says that from a copyright perspective — trademark considerations are another matter — “You can use Mickey and Minnie 1.0 from 'Steamboat Willie' and 'Plane.' ” “Crazy,” but you can’t use the aggregated later Mickey that appears in, for example, one of my favorite movies, “Fantasia.” You cannot use the copyrighted aspect of the character from later, still copyrighted works.”
So why make it a big deal if you can't customize the character as most people know him? Creatively speaking, doesn't that turn a molehill into a Matterhorn?
In fact, Mickey coming into the public eye makes sense for several reasons, experts say.
“When Mickey first appeared in 'Steamboat Willie,' it was a turning point,” says Joe Wos, cartoon historian and Emmy-winning host of PBS's “Cartoon Academy.” It was “one of the first sound cartoons in which Walt himself provided Mickey’s sounds.” What set “Steamboat Willie” apart was the emotional storytelling.”
Mickey, who pilots a steamboat in the animated short, “was an everyman character” modeled at least in part on Charlie Chaplin. “The audience identified with their joys and frustrations. “It appealed to all age groups,” says Wos.
“He also ensured the success of Disney's studio. To hold on to its cash cow—er, mouse—Disney fought to expand copyright laws.”
Disney was not the only driver of successful legal efforts to expand copyright protection in the 1970s and 1990s, resulting in characters like Mickey being protected for nearly a century. Many companies stepped up to protect intellectual property rights when they successfully lobbied for the Copyright Extension Act of 1998, which protected many artistic works for another 20 years. But wrongly, some scholars say, it was derisively referred to as the “Mickey Mouse Protection Act.”
“All the film studios wanted it [that act]says Zvi S. Rosen, assistant professor at Southern Illinois University School of Law. He also points out that the Sonny Bono Copyright Term Extension Act – its official name – also prominently protected songs by George and Ira Gershwin. And Disney was part of a larger coalition that pushed for copyright expansion in 1976, he says.
But Mickey Mouse's iconic status – and his considerable value – made him the face of efforts to expand and protect copyrighted material, although for little reason beyond even greater notoriety Authors and composers of the Jazz Age.
Disney is also known for its extreme legal vigilance protecting its property — what Wos calls “an ironic twist for Disney,” which built its empire on public domain fairy tales like “Cinderella” and “Sleeping Beauty.” Jenkins calls this dynamic the “love triangle” between Disney, its Mickey protection efforts, and its skill at adapting unprotected works.
So what's in store for Mickey and Minnie legally? That's difficult to predict, experts say. However, they point out that in recent years Disney has offered the full short film “Steamboat Willie” for free public screening and has featured the character prominently next to the company logo.
“Since Mickey Mouse first appeared in the 1928 short film “Steamboat Willie,” people have associated the character with Disney stories, experiences and authentic products. That will not change when the copyright on the film “Steamboat Willie” expires,” the Walt Disney Co. said in a statement to The Washington Post. The “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 cautions that it will not back down entirely: “We will, of course, continue to protect our rights to the more modern versions of Mickey Mouse and other works that remain subject to copyright, and we will work to avoid confusion among consumers. “through unauthorized use of Mickey and our other iconic characters.”
“Winnie-the-Pooh” has just entered the public domain. Here's what that means for fans.
One potential indicator is the early version of Winnie-the-Pooh – before creator AA Milne's work was adapted by Disney – which entered the public domain two years ago. (Notable: Winnie's Hundred Acre Wood sidekick Tigger also released the song “Let's Do” into the public domain on January 1, alongside silent films like Buster Keaton's “The Cameraman” and Laurel and Hardy's comic book debut as a duo, “Should Married Men Go Home?” It (Let's Fall in Love)” by Cole Porter and literary works such as “Orlando”, “Lady Chatterley's Lover”, “The Threepenny Opera” and “Home to Harlem”).
Nothing created with Public Domain Pooh since 2021 has changed the public perception of the original property, Jenkins says, pointing out that one-off pieces like a Pooh parody of climate change with deforestation in the Hundred Acre Forest attracted some attention , as well as the slasher film Winnie the Pooh: Blood and Honey, which grossed nearly $5 million. (Similarly, Rosen points out that a trailer has been released for a planned shooter game inspired by the look of “Steamboat Willie.”)
So what could be fair game for those looking to adapt Legal Mickey, who still bears more than a passing resemblance to modern-day Mickey?
Take Mickey's early dance style, which is snappier and “a little more awkward” compared to his later fluid movements, Jenkins says. “These are generic character traits that are not subject to copyright protection. These are isolated, non-copyrightable features of later iterations.”
Also not copyrightable, she says, is when your anthropomorphic mouse character simply speaks in a high-pitched, screeching voice: “What do you think it's going to sound like – Barry White?”
Jenkins points out that two iterations of Mickey reach the public because the “Steamboat Willie” Mickey looks different than the “Plane Crazy” Mickey: the latter “has these big eyes that cover half his face.”
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Jenkins urges potential Mickey adapters to follow some general guidelines.
“Do exactly what copyright expiration allows you to do and do something great with the public domain Mickey and Minnie.”…Just don't do it in a way that confuses consumers. And don't do it in a way that uses later copyrighted elements of copyrighted iterations of the characters.” Stay within the realm of what “trademark and copyright law allows you to do.”
“Don’t start selling your Mickey Mouse merchandise, don’t make a cartoon, or mislead the public into thinking it’s a Disney production,” she advises.
Otherwise, she says, “Start your creative engines.”