Public domain usage may not be straightforward

On Behalf of | Feb 6, 2023 | Copyright Law, Licensing |

In 1998, Disney waged a zealous effort to extend its copyright protections to 95 years (for corporate copyrights) and 70 years after the death of an individual creator. Detractors called it the Mickey Mouse Protection Act, which the Supreme Court upheld in 2003.

Now the extension that Disney wanted sunsets, and some of its Mickey Mouse property will start to enter the public domain. It begins with the 1928 Mickey Mouse short “Steamboat Willie.” Some dream of the creative or financial possibilities of using Mickey, but they must still tread carefully. Only that single copyright will expire. Also, the 8-minute short features a very different Mickey than the one several generations recognize. Mickey’s nose is more rat-like, the tail is longer, and the eyes do not have pupils. Mickey does not speak. He is also prone to mischief, tormenting both a cat and a goose.

As is often the case with prototypes, the lines are rougher, and the themes may be far from the norm established later.

What can be used?

When the short enters the public domain, Disney loses the following rights:

  • Businesses and individuals will no longer need permission to show the “Steamboat Willie” short-.
  • Versions can be resold to third parties.
  • New stories and images can feature the formative Mickey.

Of course new versions and and new stories can’t copy from versions or stories created by Disney since “Steamboat Willie.” Perhaps getting in front of the matter before others capitalize on its previously owned property, Disney put “Steamboat Willie” on YouTube several years ago, and people can see it there for free.

Not so fast: trademarks last into perpetuity

While “Steamboat Willie” is going into the public domain, the Mickey character and all the Disney characters are still trademarked, which continues into perpetuity as long as the owner continues to use and renew the mark. This detail means Disney still owns words, phrases, logos and symbols used to identify their goods for commerce. In other words, non-Disney “Steamboat Willie” usage cannot be perceived as coming from Disney. Disney further reinforces its ownership by putting the character in its logo and selling “Steamboat Willie” merchandise, which is still protected.

Winnie the Pooh goes to the dark side

Those looking for indicators of how to handle “Steamboat Willie” need to look no further than Winnie the Pooh. Disney owns the A.A. Milne’s children’s books, whose 1926 children’s book Winnie-the-Pooh came into the public domain last year. A filmmaker is now releasing a live-action horror movie, “Winnie-the-Pooh: Blood and Honey,” which includes a feral and bloodthirsty Pooh and other Pooh characters like Piglet. The movie, which comes out in February, can only use details available in the original book. For example, Pooh’s signature red shirt was added in 1930 and, therefore, cannot be part of the wardrobe.

These are very complicated legal issues

Pooh is also trademarked, but no one is ever going to assume that a B-movie slasher Pooh is something sold by Disney. Who knows what’s on the horizon from Mickey, but people will still have to be very careful how to use it. Those with questions about intellectual property usage and what qualifies as public domain – and what is unpermitted trademark use – can consult with an attorney specializing in these issues.