As your family plans its vacation to Disney World this summer, you’ll never guess that swirling around Disney’s iconic character, Mickey Mouse, is a controversial debate on how long copyrights, especially those of big businesses, should last. On January 1, 2019, Mickey Mouse is scheduled to scamper into the “public domain”—creative works that are no longer protected by copyright law. Copyright expiration means that the public has the right to reproduce and copy a creative work without consent and without paying for it. Does this mean that you can open up shop and start selling Mickey Mouse ears? Don’t count on it!
Copyright terms steadily have increased since America’s founding. In our original copyright system, protection lasted only 28 years. 1 The idea behind copyrights was to encourage and reward authors and artists for their creations for a limited time. By the mid-20th century, Congress had doubled the maximum term to 56 years. Then, in 1976, Congress overhauled the copyright system, granting a retroactive extension for works already published. The maximum term for already- copyrighted works was lengthened from 56 to 75 years. That meant that any work still under copyright in 1978, when the new system took effect, was eligible for an additional 19 years of protection. Without the extension, works copyrighted between 1922 and 1941 would have become public domain between 1978 and 1998.
With the 1976 overhaul, the original Mickey Mouse was scheduled to become public domain in 2003, as well as iconic copyrighted works such Happy Birthday and George Gershwin's Rhapsody in Blue. Having first made his appearance on screen in the 1928 cartoon, Steamboat Willie, Mickey Mouse (along with Minnie) was rapidly heading toward public domain, allowing anyone to make new Mickey Mouse cartoons. When the 1990s arrived, and copyright expirations loomed, the holders of older copyrights began agitating for another extension. The entertainment conglomerate, Walt Disney, used every effort to assert continuing control over the notorious Mouse.
In October, 1998, President Clinton snatched Mickey from his pending fate by signing into law the Copyright Term Extension Act, also known as the Sonny Bono or Mickey Mouse Protection Act. The Act was a windfall to the families and corporations, like Disney, that owned these lucrative copyrights. But it meant these iconic works would be off-limits to those who wanted to reuse or reinvent them without permission, and hundreds of thousands of lesser-known works weren’t available at all because there was no cost-effective way to obtain permission to republish them. 1 U.S. Const. Art. I, §8, cl. 8.
One ironic way of illustrating how important it is to have creative works available in the public domain is to look at Disney's films. Disney has lobbied to extend copyright laws to protect its older creative works: Snow White, Cinderella, Sleeping Beauty, and many other princess stories, which were based on age-old “public” fairy tales, for which Disney never paid license fees or royalties. Later Disney works snatched from the public domain include children's literature like, Pinocchio, Alice in Wonderland and The Jungle Book (released one year after Rudyard Kipling's copyright expired). Disney didn't pay a cent for story licenses, yet reaped millions. Even later films made under the reign of Michael Eisner, including The Little Mermaid, Aladdin and Alice in Wonderland, were plucked from the public domain and captured by Disney’s copyrights.
With the expiration of the original Mickey Mouse copyright now looming in 2019, by no means is it certain that anyone will be able to make or reuse Mickey cartoons or sell images or likenesses of the renowned mouse. Why not? The answer is trademark law.
Trademark law protects words, phrases and symbols that identify the source of products or services; whereas, copyright law protects works of artistic expression from being copied. Unlike copyrights, trademarks do not expire if the registrant pays required maintenance fees. The use of trademarks to protect copyrighted works is nothing new. The first 21 Tarzan stories, first published in 1916, are now all public domain. Yet, there are no rival Tarzan stories written by other authors. The heirs of Edgar Rice Burroughs, the creator of Tarzan, had the foresight to obtain a trademark on the name “Tarzan,” preventing the distribution of works using the Tarzan trademark.
Does giving trademark status to a “public” character in effect grant a perpetual copyright? In a word, yes. But one federal court has limited the trademark protection of copyrighted characters, stating that, in order for trademark law to protect a character in the public domain, one must automatically associate the character with its creative source. 2 There is little doubt that anyone seeing the image of Mickey Mouse, his silhouette or illustrious mouse ears immediately will think of Disney. Leaving nothing to chance, Disney has filed 19 different trademark registrations for the words and images of “Mickey Mouse,” including for use in live action and animated television shows, motion pictures, cartoons, comic books, theme parks and computer games. Few characters, unlike Mickey Mouse, are so famous and so closely associated with their creators that trademark law will, in effect, grant a copyright in perpetuity.
So when your family visits Disney World this summer, make sure you purchase your Mickey Mouse ears at the park—you can’t make them yourself at home!
2 Frederick Warne & Co. v. Book Sales, Inc., 481 F. Supp. 1191 at 1197, S.D. New York, 1979.