There is nothing soft and cuddly about the way The Walt Disney Co. protects the characters it brings to life.
This is a company that once forced a Florida day care center to remove an unauthorized Minnie Mouse mural. In 2006, Disney told a stonemason that carving Winnie the Pooh into a child’s gravestone would violate its copyright. The company pushed so hard for an extension of copyright protections in 1998 that the result was derisively nicknamed the Mickey Mouse Protection Act.
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?
“I’m seeing in Reddit forums and on Twitter where people — creative types — are getting excited about the possibilities, that somehow it’s going to be open season on Mickey,” said Aaron J. Moss, a partner at Greenberg Glusker in Los Angeles who specializes in copyright and trademark law. “But that is a misunderstanding of what is happening with the copyright.”
The matter is more complicated than it appears, and those who try to capitalize on the expiring “Steamboat Willie” copyright could easily end up in a legal mousetrap. “The question is where Disney tries to draw the line on enforcement,” Moss said, “and if courts get involved to draw that line judicially.”
Only one copyright is expiring. It covers the original version of Mickey Mouse as seen in “Steamboat Willie,” an eight-minute short with little plot. This nonspeaking Mickey has a ratlike nose, rudimentary eyes (no pupils), and a long tail. He can be naughty. In one “Steamboat Willie” scene, he torments a cat. In another, he uses a terrified goose as a trombone.
Later versions of the character remain protected by copyrights, including the sweeter, rounder Mickey with red shorts and white gloves most familiar to audiences today. They will enter the public domain at different points over the coming decades.
“Disney has regularly modernized the character, not necessarily as a program of copyright management, at least initially, but to keep up with the times,” said Jane C. Ginsburg, an authority on intellectual property law who teaches at Columbia University.
The expiration of the “Steamboat Willie” copyright means that the black-and-white short can be shown without Disney’s permission and even resold by third parties. (There may not be much sales value left, however. Disney posted it for free on YouTube years ago.) It also means that anyone can make use of the film and the original Mickey to further expression — to create new stories and artwork.
Winnie the Pooh, another Disney property, offers a window into what could happen.
This year, the 1926 children’s book “Winnie-the-Pooh,” by A.A. Milne, came into the public domain. An upstart filmmaker has since made a low-budget, live-action slasher film called “Winnie-the-Pooh: Blood and Honey,” in which the pudgy yellow bear turns feral. In one scene, Pooh and his friend Piglet use chloroform to incapacitate a bikini-clad woman in a hot tub and then drive a car over her head.
Disney has no copyright recourse, as long as the filmmaker adheres to the 1926 material and does not use any elements that came later. (Pooh’s recognizable red shirt, for instance, was added in 1930.) Fathom Events will give “Winnie-the-Pooh: Blood and Honey,” directed by Rhys Waterfield, a one-day theatrical release in the United States on Feb. 15.
Here is where it gets tricky: Disney also holds trademarks on its characters, including the “Steamboat Willie” version of Mickey Mouse, and trademarks never expire as long as companies keep submitting the proper paperwork. A copyright covers a specific creation (unauthorized copying), but trademarks are designed to protect against consumer confusion — to provide consumers assurance about the source and quality of a creation.
Boiled down, any public domain use of the original Mickey cannot be perceived as coming from Disney, Ginsburg explained. This protection is strong, she added, because the character, even in his early form, has such close association with the company. People glance at those ears and smile and “automatically associate it with Disney,” she said.
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.
The 1998 copyright extension prompted a court fight, with detractors arguing that Congress disregarded the Constitution, which holds that copyright protection be given for a “limited” time. “Free the Mouse” bumper stickers began appearing, according to Paul Goldstein, a professor at Stanford Law School and the author of a five-volume treatise on U.S. copyright law.
“Disney was no more active in pushing for the extension than anyone else, but they made for a convenient villain,” he said.
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