Freeing the Mouse

In the 1928 short film Steamboat Willie, Americans saw—and for the first time heard—a plucky little rodent named Mickey Mouse as he pilots a riverboat, engages in a running feud with a parrot, employs a towline to bring Minnie Mouse on board, and uses various animals (a cow, a cat, a duck, piglets) as musical instruments.

In 2024, Americans may see that same Mickey Mouse slay zombies or fight ­vampires. That’s because Mickey, as he originally appeared in Walt Disney’s Steamboat Willie, will enter the public domain. Today’s version of Mickey will still belong to Disney, but issues like trademark infringement may yet complicate using the Mickey of yore.

Walt Disney Animation Studios turned 100 in October, and in the next few years some of the company’s other beloved films will also age out of copyright protections.

Such legal protections originate in the copyright clause of the Constitution, which stipulates that original creations can be ­protected for “limited times”—a phrase that has been subject to ongoing interpretation.

The 1790 Copyright Act guaranteed protections for “books, maps, and charts” for up to 28 years, as long as the creator was still alive. The idea was to give authors incentives to create original works without fear of ­plagiarism but to keep the time frame somewhat brief. Copyrights changed drastically after the Copyright Act of 1909 extended the time frame to 56 years. In 1912, an amendment to the bill allowed for the ­protection of movies.

Thanks in part to persistent lobbying by the Walt Disney Co., Congress passed the Copyright Act of 1976, extending the time frame to 75 years for “works for hire,” or works owned by a company. Since Walt Disney sketched Mickey on behalf of his corporation, the Mouse is a “work for hire” and entitled to extended protections.

The Sonny Bono Copyright Term Extension Act, passed in 1998, lengthened protections to 95 years. Even though the law has been nicknamed the Mickey Mouse Protection Act, other works benefited from extended copyright protection, including Gone With the Wind. Time Warner and the Gershwin estate (owners of “Rhapsody in Blue”) also favored the passing of the act.

The 1998 law has kept Steamboat Willie out of the public domain for 95 years. On Jan. 1, 2024, Steamboat Willie will enter public domain and can be distributed without Disney’s permission.

But there is that complicating factor: trademark infringement. Trademarks are usually symbolic of a company (think Nike’s swoosh or the shape of a Coca-Cola bottle) and help to minimize ­consumer confusion. Copyrights and trademarks both represent intellectual property, but copyrights expire while trademarks do not. Copyright protects the creative work and the artist. Trademarks protect the brand. Disney has around 2,000 trademarks on its productions and characters. Mickey Mouse is trademarked. For artists like filmmakers to get around that problem, it would need to be clear that any new work did not come from Disney.

Weirdly, the slasher genre has proven a pretty safe arena for creators to clear that hurdle. Winnie-the-Pooh: Blood and Honey (2023) comes to mind, as no one would ever blame Disney for producing it. A.A. Milne’s 1926 Winnie-the-Pooh storybook lost copyright protection in 2022. Director Rhys Frake-Waterfield’s horror movie is very loosely based on the characters.

In Blood and Honey, Christopher Robin returns from college, only to find that his friends from the Hundred Acre Wood have gone feral. Rotten Tomatoes rates Blood and Honey, which Frake-Waterfield made on a ­paltry $100,000 budget, as one of the lowest-rated movies of all time. Still, the film raked in impressive box-office revenue and ­managed to avoid lawsuits.

Disney bought the rights to Milne’s books in the 1960s, and Frake-Waterfield’s representation remained consistent with the way Pooh was originally illustrated. In this year’s slasher, Waterfield dressed the bear in a red flannel since the classic red T-shirt wasn’t added to Pooh illustrations until 1932 and is still protected by copyright.

Tigger, who wasn’t in the film since his copyright hadn’t yet expired, will reportedly appear in Blood and Honey 2. Disney stopped hyphenating “Winnie the Pooh” after acquiring the rights to the books, but Frake-Waterfield included hyphens in Blood and Honey promotional materials, albeit subdued ones.

What does all this mean for Mickey Mouse? In the new year, creators who want to riff on Mickey will have to stick to the way he originally appeared in the 1928 film: no white gloves, red shorts, or yellow shoes. And his eyes can’t have pupils, since those weren’t added until Mickey’s appearance in The Pointer (1939). Each time Disney updates Mickey, the company can renew the copyright and that edition is safe from public domain.

The issue of public domain is a ­relatively new one for Disney. But when it comes to infringement, the company has typically gone to great lengths to protect its intellectual property, once even penalizing an elementary school for an unauthorized showing of The Lion King.

Given that history, the company may well file some big lawsuits in ­coming years—and with a growing cast of characters: Pluto enters the public domain in 2025, and Donald Duck comes next, in 2029.