Dan O'Neill was 53 years ahead of his time.
In 1971 he launched a countercultural attack on Mickey Mouse. In his underground comic “Air Pirates Funnies,” the lovable mouse was seen smuggling drugs and performing oral sex on Minnie.
As O'Neill had hoped, Disney sued him for copyright infringement. He believed it was a legal parody. But after eight years in court, he was saddled with a sentence he couldn't pay. To avoid going to prison, he agreed never to draw Mickey Mouse again.
“To me it's still a crime,” O'Neill, 81, said in a telephone interview from his home in Nevada City, California. “If I draw a picture of Mickey Mouse, I owe Walt Disney a $190,000 fine, another $10,000 in legal fees and a year in prison.”
Mickey and Minnie enter the public domain on January 1st. From then on, Disney no longer enjoys exclusive copyright to the earliest versions of the characters. Underground cartoonists, filmmakers, novelists, songwriters – whoever – will have the freedom to do whatever they want with them.
Mickey Mouse has long been a symbol in the copyright wars. Beyond the practical implications, the event – 95 years after its debut in the short film “Steamboat Willie” – is also an important symbolic milestone.
“This is a big deal,” said Jennifer Jenkins, director of the Duke Center for the Study of the Public Domain. “It’s causing so much excitement in the copyright community – it’s finally happening.”
Every January 1st, Jenkins celebrates Public Domain Day and releases a long list of works that artists can now remix and reinterpret for free. This year's list includes Tigger, who, like Mickey Mouse, made his first appearance in 1928. Other works from 1928 include “Lady Chatterley's Lover,” “All Quiet in the West,” and Buster Keaton's “The Cameraman.”
The celebrations are relatively new. After Congress extended copyright protections in 1998, 20 years passed during which nothing entered the public domain. In 2019, works began losing copyright protection again, and since then, the season has opened for The Great Gatsby, Rhapsody in Blue, and Winnie the Pooh.
Recent adaptations of these works could provide a taste of what's to come for Mickey Mouse.
“'Just add zombies' seems to be a popular thing,” Jenkins said.
“The Great Gatsby Undead” was released on Amazon on January 2, 2021, followed by “The Great Gatsby and the Zombies.”
There is also, of course, “Winnie the Pooh: Blood and Honey,” the slasher film that made it onto several critics’ lists of the worst films of 2023. The film was released in the United States in February through distributor Fathom Events and grossed a significant amount of money. The book caused a media stir due to its shocking value, but has so far grossed only $5 million worldwide.
“Many people do many things,” said Lawrence Lessig, a Harvard law professor who has written extensively on and advocated for copyright issues. “That’s the thing people in Hollywood don’t focus on. There is an extraordinary diversity of people who create purely for the love of creativity.”
Air Pirates Funnies from 1971, in which Mickey Mouse is portrayed as a drug smuggler.
Lessig could be as responsible as anyone for putting Mickey Mouse at the center of the copyright debate. He was the most prominent critic of the 20-year extension, without which Disney's copyright on his signature character would have expired in 2004.
Lessig called the law the “Mickey Mouse Protection Act.” He can't remember if he coined the term or adopted it from someone else, but he used it a lot and it stuck.
Disney definitely lobbied for the bill. However, some argue that his role in the legislation is overstated, pointing out that many other copyright holders – including songwriters and the estate of George Gershwin – also pushed for it.
“Disney's fearsome reputation has always been somewhat overstated. They are a convenient bogeyman,” said Zvi Rosen, a law professor at Southern Illinois University, who argues that Disney’s lobbying was not a significant factor. “After the law was passed, the public debate was really about Mickey Mouse.”
Lessig fought the extension all the way to the Supreme Court. He argued that Congress might continue to grant extensions, thwarting the constitutional mandate that copyrights last “for a limited time.” He lost 7-2, but the debate helped advance the movement for Creative Commons and appreciation for the benefits of “remix culture.”
“This movement has made people aware of the fundamental need for balance on this issue,” Lessig said. “At the beginning of this battle, it was a simple battle between the pirates and the landowners. And at the end of that time, people realized that there was a much broader range of interests at play here, like education and access to knowledge.”
When the extension deadline expired in the 2010s, some assumed that Disney and other copyright holders would push for another extension. But that never happened.
Some argue that the copyright holders realized that another extension would be met with a storm of protest and so they didn't try. At some point it became clear that Mickey Mouse would truly enter the public domain.
“It’s significant,” Lessig said. “Let’s hope it’s the start of a new chapter.”
He continues to support reforms that would unlock a large amount of cultural production that remains inaccessible because it has no commercial value and whose ownership cannot be determined.
“The greatest weakness of copyright law is that we cannot know who owns what,” Lessig said. “It is the most inefficient property system known to man.”
Walt Disney with Mickey and Minnie Mouse Courtesy of PBS © Condé Nast Archive/Corbis
Disney will still have options to protect Mickey Mouse after January 1st. The company will retain the copyright to the more modern versions of the character for a few more years. And it has said it will continue to defend its trademarks, which could limit creators' options.
“This is very different than Winnie the Pooh,” said Justin Hughes, an intellectual property professor at Loyola Law School. “When Winnie the Pooh entered the public domain, there was 'Winnie the Pooh: Blood and Honey'.”
He argued that there was less leeway with Mickey Mouse because it was such a strong brand. In 2007, Walt Disney Animation Studios adapted a clip from “Steamboat Willie” as its logo, cementing its claim to be the earliest version of Mickey.
“There will be some legitimate public domain uses,” Hughes said. “But people need to be very careful not to trigger a legitimate Disney trademark claim.”
However, Jenkins rejects the idea that Disney can use trademark law to stifle creative expression. Trademarks are used to protect brands. As long as artists don't try to pass off their work as coming from Disney, there shouldn't be a trademark issue for them, she said.
“Don’t start selling Disney merchandise,” she added.
Rosen said it may take litigation to resolve the matter.
“Someone will do something that Disney will have to sue over,” he said. “It’s almost inevitable.”
Disney's reputation for zealous copyright enforcement goes back decades, at least to the Pirates case. It was cemented by two incidents in 1989. First, Disney sued the Academy Awards for an unauthorized depiction of Snow White. It then called for the removal of murals depicting Disney characters from the walls of three day care centers in Hallandale, Florida.
But in recent years, copyright lawsuits against Disney have dwindled to a minimum.
Studios are increasingly dealing with online piracy, which they don't typically fight in court. Instead, studios submit takedown notices — millions of them — to online platforms under the Digital Millennium Copyright Act.
Copyright holders wish this process could do a better job of stamping out piracy. According to Rosen, they are much more focused on getting Congress to reform this system than on extending copyright provisions.
“This is clearly a higher priority,” he said.
“Steamboat Willie” has been available for free on YouTube for more than a decade, so Disney may not have much to lose if others reuse it. And without the thrill of the forbidden, Mickey might not be as attractive to parodists either.
“I doubt that contemporary alternative cartoonists would find much satisfaction in mocking Mickey,” said Bob Levin, author of “The Pirates and the Mouse: Disney's War on the Counterculture.”
O'Neill said he targeted Mickey because he associated the mouse with Walt Disney's conservative politics and with President Nixon. For others, it represents consumerism, cultural imperialism or childhood nostalgia. From January 1st, everyone is free to reinterpret it.
“We’re stuck with Mickey Mouse,” O’Neill said. “It belongs to everyone.”