Serena Nath is an IPilogue Writer and a 2L JD candidate at Osgoode Hall Law School.
Every year on January 1, works protected under copyright law enter into the public domain due to their copyright protection expiring. Thus, as a new year approaches, those in the field of copyright look to see which works will expire at the end of the year. As the world entered January 2023, many excitedly anticipated that Disney’s copyright protection of Mickey Mouse in the United States (US) would expire at the end of 2023, allowing Mickey Mouse to enter the public domain as of January 1, 2024. This means that Mickey Mouse can be reproduced, adapted, published, publicly performed, and publicly displayed by anyone in the United States without infringing upon Disney’s copyright.
As a general rule in the U.S., for works created after January 1, 1978, copyright protection lasts for the life of the author plus 70 years. However, for works created before January 1, 1978, the duration of copyright protection depends on several factors as set out by chapter 3 of the Copyright Act in the United States. Mickey Mouse was first introduced in the US in 1928 with the film “Steamboat Willie,” so its copyright protection term was dictated by several factors outlined in chapter 3.Additionally, the expiration of the copyright term only applies to the original version of Mickey Mouse displayed in Steamboat Willie; later versions of Mickey Mouse will still be protected by copyright. This original version of Mickey Mouse is a black and white rat-like depiction with a long snout and black eyes, whereas later versions of Mickey Mouse include the version of Mickey with his signature red shorts and white gloves.
Copyright law in the US has evolved many times in part as a result of Disney lobbying for copyright term extension. Originally, the Mickey Mouse copyright was supposed to expire in 1983 because when Mickey Mouse was first debuted to the public in 1928, copyright law only protected works for 56 years. However, in 1976 Congress passed the Copyright Act of 1976 which extended the copyright term to 50 years after the death of the author or 75 years after the death of the author if the author was hired by an employer to create the work. As a result, the Mickey Mouse copyright was then set to expire at the end of 2003.
Starting in 1990, Disney pushed hard for an extension of copyright protections. This resulted in the Sonny Bono Copyright Term Extension Act in 1998 which extended copyright protection to 70 years after the death of the author. This extension is why Mickey Mouse’s copyright protection is set to expire at the end of 2023. The extreme lobbying from Disney to extend copyright protections earned the 1998 act the nickname of the “Mickey Mouse Protection Act.”
Although the original Mickey Mouse’s copyright protection will expire at the end of 2023, Disney will still be able to protect the Mickey Mouse brand through trademark law. Mickey Mouse is protected as Disney’s property because it is a registered trademark. Trademark protection can theoretically last forever if Disney can continually show that Mickey Mouse is associated with its company. Disney will likely be able to continually show an association with Mickey Mouse. In 2007, Walt Disney Animation Studios redesigned its logo to incorporate the original version of Mickey Mouse. Therefore, although someone may use the original version of Mickey Mouse in a work, they are not able to use this version of Mickey Mouse for any branding purposes or any purpose that would cause consumers to be confused about the source of the Mickey Mouse product. These intersections between trademark and copyright law may stop Mickey from strolling into public use for the coming years.
One Response
Amazing piece, Serena! I really enjoyed reading your summary of Disney’s efforts to extend copyright term extension and how it relates to Mickey Mouse entering the public domain. Your piece inspired me to reflect on two ideas: 1) how IP law and theoretical justifications underlying specific policy choices can be used to support specific interest and 2) how trademark law is sometimes used to fill the gaps copyright protection leaves.
To address my first thought, Disney’s various efforts to extend copyright protection, arguably, for their interests in protecting and controlling their copyright assets like Mickey Mouse reminds me of how supporting certain theories as a justification for IP law can be used to further specific goals. Disney’s actions remind me of an idea in Gillian K. Hadfield’s (“Hadfield”) “The Economics of Copyright: An Historical Perspective.” Hadfield, on p. 9, explained that publishers’ supported the creation of a statute based on a natural rights theory (like theories developed by Kant and Locke) to mimic the private copyright publishers enjoyed before because these theories support an extended duration of protection.
To address my second thought, Disney’s use of trademark law to protect Mickey Mouse reminds me how other industries and actors have used trademark law when copyright law leaves a gap. For example, in fashion, it is often hard to gain protection for fashion designs (not just pictorial, graphic and sculptural elements) through IP law in Canada and the United States. If able, brands often then protect design silhouettes through trade dress such as the Birkin Bag (CIPO Application number 1414879). In addition, Rosie Giannone, in her IPilogue article, “Who’s Laughing Now? EUIPO Board of Appeal Rules that Banksy Can Keep his Trademark and Anonymity Too”, wrote about how Banksy filed an EU trademark claim to remain anonymous because copyright requires artists to discover their identity.
Overall, it is very interesting to see how much effort Disney put into controlling Mickey Mouse and begs the question: what about the societal interest in a robust public domain?