Mickey Mouse Joins the Club: Public Domain, Revisited

It’s a new year, which means one thing to every eager copyright-watcher: Public Domain Day! As of January 1, 2024, all works published before 1929 have fallen into the public domain, including the earliest versions of one of the most significant animated characters of all time: Mickey Mouse. The reaction to Mickey’s new status created a surge in media interest and several new projects featuring variations of the character were announced, including at least one survival horror game and at least one horror comedy movie. But before you begin scoping out your next creative project featuring this newly-available animated mouse, understanding exactly what public domain status permits for the character—and more importantly, what it does not—is vital.

Public Domain (re)Defined

Back in 2022, we published an article on public domain highlighting A.A. Milne’s 1926 short story compilation Winnie-the-Pooh, which had recently fallen into the public domain and introduced the world to characters like Winnie-the-Pooh, Christopher Robin, and Piglet (and now that Milne’s 1928 short story compilation The House at Pooh Corner is also in the public domain, this cast of available characters includes Tigger, too). To quickly reiterate, “public domain” refers to the body of creative work to which there are no exclusive intellectual property rights, and to which anyone is free to repurpose, reproduce, distribute, or disseminate the work without payment or permission from the previous owners.

We also emphasized that while certain versions of a character might be in the public domain, they may still be subject to other intellectual property protections, and subsequent depictions or interpretations of that character could still be copyright-protected. Turning back to Winnie-the-Pooh as an example, while the original depictions of the character in Milne’s work fell into the public domain in 2022, Disney’s interpretation of him as a pudgy yellow bear wearing a red shirt was only introduced in 1961, and so will not likely enter the public domain until 2057. Disney additionally owns numerous trademark registrations for Winnie-the-Pooh character names, meaning that while anyone is free to use Milne’s original depiction and description of the character, Disney will still enforce their right to use WINNIE THE POOH or other character name trademarks as a source identifier for their goods and services.

The House of Mouse

Mickey Mouse, longstanding mascot of the Walt Disney Company, first publicly appeared in Walt Disney and Ub Iwerks’ 1928 black-and-white animated short film Steamboat Willie. This short also featured Minnie Mouse, and while both characters appeared in earlier-produced animated shorts that year, Steamboat Willie was the first to be distributed and is considered their official debut. Mickey has since appeared in over 130 films and been featured in numerous comic strips and books, several television series and video games, and countless consumer products. The Walt Disney Company also owns dozens of registered trademarks in connection with Mickey Mouse, including in both the character’s name and image, across a vast array of goods. Like with Winnie-the-Pooh, Disney has transformed Mickey Mouse into a multi-billion-dollar property.

Disney has been preparing for the inevitability of their iconic mascot falling into the public domain for some time. The company (along with many other media entities) famously supported extending copyright protections in the 1990s, with their efforts being answered by Congress passing the Sonny Bono Copyright Term Extension Act in 1998, adding an additional 20 years to the copyright terms for eligible works. Disney changed the production logo of Walt Disney Animation Studios to feature an animated excerpt from Steamboat Willie in 2007, and promptly trademarked this updated logo. They also began offering Steamboat Willie online for free public viewing on their official channels in 2009, potentially undercutting later reposting of the short by other parties elsewhere.

Steamboat Willie entering the public domain is therefore unlikely to result in Disney becoming lax in enforcing their rights, and a company spokesperson to CNN recently made clear that Disney will “continue to protect [their] rights in the more modern versions of Mickey Mouse and other works that remain subject to copyright, and will work to safeguard against consumer confusion caused by unauthorized uses of Mickey and [their] other iconic characters.”

So What Exactly Can Be Used?

Like we explained in our previous article, parties seeking to use a public domain character that has been featured and developed across multiple works for many years should take care to limit that use to only the versions and traits of the character currently within the public domain, and to avoid any use that may result in consumer confusion as to the source or origin of the work.

For now, this means only the versions of Mickey Mouse that appeared in the 1928 animated shorts are open to public exploitation. Only this black-and-white depiction of the character, who has been observed to be rougher, raspier, and more rat-like than his later interpretations is fair game for reproduction and repurposing. None of his more modern visual or personality characteristics are similarly available, so no large expressive eyes, wardrobe choices like white gloves and red shorts or a wizard’s robe and hat, or the overall “good guy” characterization are yet part of the public domain.

Additionally, individuals or companies wishing to include this 1928 version of Mickey Mouse in their works must take care not to do so in such a way that it is confusingly similar to Disney’s registered trademarks in the character. Any use that may imply sponsorship or association with Disney or its registered trademarks is likely to run afoul of Disney’s trademark rights, regardless of Mickey’s current public domain status.

***

Tyz Law Group is a boutique litigation and IP counseling firm comprised of former big law and in-house attorneys with highly specialized expertise in the technology sector.  If you have any questions about the issues discussed in this article, please do not hesitate to contact us at (415) 868-6900 or contact@tyzlaw.com.  

The above article may constitute attorney advertising. For more information, please see: www.tyzlaw.com/attorney-advertising-notice.