One More Year Until Steamboat Willie’s Mickey Mouse Enters The Public Domain: Will Mickey Really Be Free?
As you're probably aware, now that it's January, we're running our annual public domain game jam, for games based on works from 1927. This is the 5th year we've done this, ever since the public domain (finally) returned to the US after decades with no works ever reaching the public domain, due to never-ending copyright term extension. Many people have noted that the terms seemed to extend just as Disney's Mickey Mouse was about to enter the public domain. And while some scholars dispute the claim that Disney was the main lobbying force behind extensions, it's uncanny how often the extensions seemed timed to Mickey's unshackling.
A few years ago, though, it became clear that even Disney had given up on the idea of copyright term extension in the US (elsewhere, however...). After all, even one of the most extreme pro-copyright Copyright Registrars had suggested that perhaps it was time to scale back copyright terms (though only in the slightest of ways). The battle over the Sonny Bono Copyright Term Extension Act, followed by the battle over SOPA has (at least) taught the legacy copyright industries that they can't just slip through never-ending extensions any more.
That didn't stop a weird flood of articles last summer bemoaning the horror that would come from Disney losing the copyright on the Steamboat Willie version of Mickey Mouse, as it's set to do on January 21st, 2024. Right before the New Year, the NY Times had a slightly more balanced article looking at what to expect on the freeing of Steamboat Willie Mickey in one year's time.
For the first time, however, one of Disney's marquee characters - Mickey himself - is set to enter the public domain. Steamboat Willie," the 1928 short film that introduced Mickey to the world, will lose copyright protection in the United States and a few other countries at the end of next year, prompting fans, copyright experts and potential Mickey grabbers to wonder: How is the notoriously litigious Disney going to respond?
As the article notes, this definitely isn't a free-for-all for Mickey. The Steamboat Willie version is quite different from the Mickey most people know of today. It is true that Disney won't be able to stop people from showing or sharing the original animation, but the company itself put it up on YouTube well over a decade ago anyway, so it's free for all to see.
But there are other parts of the article that clearly suggest that Disney is prepping itself to use trademark law to scare off would-be adapters. This has always been something of a concern, and the article suggests that Disney itself has been quietly getting things ready for this kind of legal attack. As we've explained dozens of times, trademark and copyright law are different. Trademark law is really about not confusing or tricking the consumer into believing a product was made by someone else. So, really, the issue is in not making content that anyone might think would have come from Disney, which might wipe out a fair bit of content, but still leave plenty of open space.
But, also, trademark is about commerce, and the trademark holder has to be making use of the trademark in commerce in order for it to remain valid. But, as the article notes, over the past fifteen years or so, Disney has been gradually ramping up its commerce related to the Steamboat Willie version of Mickey.
In 2007, Walt Disney Animation Studios redesigned its logo to incorporate the Steamboat Willie" mouse. It has appeared before every movie the unit has released since, including Frozen" and Encanto," deepening the old character's association with the company. (The logo is also protected by a trademark.) In addition, Disney sells Steamboat Willie" merchandise, including socks, backpacks, mugs, stickers, shirts and collectibles.
My sense is that Disney will be cautiously litigious around Mickey. That is, I'm guessing that the aggressive IP enforcement team will be told not to go after just random uses of the Steamboat Willie version of Mickey, but anything borderline will bring down the lawyers screaming trademark infringement.
Of course, there's another side to this not covered in the NY Times piece, which is that it's unlikely Disney's copyright in the Steamboat Willie version of Mickey is even valid in the first place. Beyond the fact that Steamboat Willie was a parody of Buster Keaton's Steamboat Bill Jr. (which came out just a few months earlier, and will also be going into the public domain next January), a bunch of researchers have found pretty strong evidence that Disney screwed up the copyright filings for the film anyway, meaning it likely technically went into the public domain decades ago. It's just that no one wanted to fight Disney's litigation team on it.