Animators and The Law: When Will Mickey Mouse Enter the Public Domain?
This is the fourth and last in a series of posts that take a look at just some of the many legal aspects of the animation industry.
It’s a question that seems to lead plenty of people to this blog but the post they land on is not entirely relevant. So here, for all those people is the post they’ve been looking for.
When Will Mickey Mouse Enter the Public Domain?
The most important piece of recent legislation concerning our hero is the Sonny Bono Copyright Term Extension Act, which basically extended the period of time for which creative works are covered by copyright. The interesting thing about this act is that it has a nickname. Care to guess what it is?
How about the “Mickey Mouse Protection Act”.
Yes indeedy, but first, it’s important that we define just how Mickey is covered and in order to do that, we must first define just exactly what “Mickey” is.
Mickey Mouse and similar characters inhabit the gray area where copyright and trademarks collide. A quick and dirty explanation is as follows:
- Mickey Mouse’s films are covered by copyright
- Mickey Mouse’s design/looks are covered by copyright
- Mickey Mouse as a cartoon salesman is covered by trademarks.
Can’t tell the difference? Not to worry, that’s the purpose of this post.
Mickey Mouse is a creation, and as such his design is covered by copyright. His films are also subject to copyright in that they are expressions of the creation that is Mickey Mouse.
The distinction comes when Mickey Mouse is used as a tool to sell things. In that capacity, he is a trademark that is for the exclusive use of the Walt Disney company and anyone it licenses the character to.
Confused? Don’t worry, it will all be clear in a moment.
Why the distinction? Well, a trademark is sometimes not a creation, it can, in fact, have existed for hundreds of years. What a trademark does is extend to the owner the exclusive right to use the trademark for the business purpose that they applied for the trademark for. Sounds tricky doesn’t it?
It isn’t though. It basically means that someone setting themselves up as, say a record label called Apple is granted the privilege of being allowed to be the only record company called Apple. This is to avoid confusion in the mind of the consumer, which could result in “brand dilution”.
It does not prevent someone else from calling their company Apple and selling, say, computers. Why? Because selling records and selling computers are two completely separate market sectors that are unlikely to lead to confusion among consumers*.
Mickey Mouse is a trademark of the Walt Disney Company insofar that he acts as a salesman, mascot and calling card for the firm. Such uses are covered under trademark because they can be (and are) used by consumers to identify a particular company.
So now that we’ve established what copyright and trademarks are and the main difference between them, why are they important in the case of Mickey Mouse?
The reason is time.
You see, copyrights have term limits, trademarks do not (as long as they are actively enforced). Mickey Mouse can remain a trademark forever but his films will at some point enter into the public domain.
However, that remains to be seen:
Thanks to the lobbying muscle of Disney and its allies, U.S. copyright protection has protruded further and further into the future, from the 14 years of the first copyright law in 1790 to the 120 years of today — far beyond the lifetime of any artist.
That quote is taken from a superb article by Charles Kenny. No, not I, but a senior fellow at the Center for Global Development in Washington DC who I coincidentally happen to share the same name with. The full article is well worth a read to see how such actions by Disney and other entertainment giants are affecting the developing world in detrimental ways.
If Mickey Mouse’s films ever do enter (or are acknowledged as entering) the public domain, it will allow people to view them, edit them, remix them and so forth, it will not however, allow anyone to sell any merchandise branded as being “Mickey Mouse” merchandise. Why? Because unless they are officially sanctioned by the Walt Disney Company, they will be in breach of trademark law.
So, to answer the original question:
Mickey Mouse’s films will enter the public domain when their copyright terms expire. As of right now, that is 2020 for Steamboat Willie (barring further term extensions). As long as Disney maintains their trademark over the character, he will remain for their exclusive use indefinitely.
*As you may well be aware, when two market sectors do collide, a lawsuit results, as happened when Apple Computer launched iTunes, a breach of an agreement with Apple Corps.