This is not the type of “Mickey Mouse” Act you want to reckon with – it is in fact a serious matter[i].
Let’s start from the beginning. As some of you may already know, copyright law provides artistic works with protection for a limited time. Without getting into the specific time-frame for each unique work, this means that at some point in time every work (creation) will be in the public domain. Disclaimer: do not start the party just yet! It is not always as straight forward as it may seem. There are some complexities and Mickey Mouse is certainly a good example of it.
Steamboat Willy was the first version of Mickey Mouse and it was published in 1928[ii]. To make a long story short – for those of us who are not history buffs and prefer simplicity – there were in fact multiple extensions for the protections afforded under U.S. copyright law to works created in the last century. One of the notable ones, worthy of a mention, is the 1976 Copyright Act, which provided the creation with protection for up to 75 years (for works created before 1978 that were published or registered). Thereafter, in 1998 the Sonny Bono Copyright Term Extension Act (aka the “Mickey Mouse” Act) extended the protection up to 95 years for such works[iii]. Essentially, this provides Disney with copyright protection for the character Mickey Mouse until the beginning of 2024 – the time in which Mickey Mouse will become part of the public domain under copyright law.
But wait! There is another issue that you should be aware of before you start providing the public with Mickey Mouse goods and services. Disney Enterprises, Inc. currently has multiple trademark registrations (some still pending) for the Mickey Mouse name, logo, and they even use (and have used) the Mickey Mouse image/logo as a symbol of their company to market multiple goods and services[iv]. You may ask: so what? Their copyright will expire in 2024. Yes. But, keep in mind that trademark registrations do not expire unless you abandon them or fail to renew them. And, under common law, so long as the mark is used in commerce, the mark owner can make a claim for a trademark protection within the limits of the use – regardless of registration. Furthermore, in this Mickey Mouse situation, it is important to note that Disney will argue that the character Mickey Mouse has acquired indisputable secondary meaning with respect to the Disney brand[v]. This will definitely be an important factor that the courts will consider if a dispute arises. Hence, Disney will most likely defend its intellectual property under trademark law. It will be safe to say that Disney will spend as much money as needed to defend their intellectual property.
Therefore, in the case of Mickey Mouse, currently, it appears as if Disney will be able to continue to protect its Mickey Mouse character even after it loses its protections under copyright law. However, this is not necessarily true of all of Disney’s characters; some of which are also reaching the end of their copyright protection. With this in mind, from a legal standpoint, it would be interesting to see how the law shapes-up as some disputes are likely to arise in the near future on similar matters (i.e., famous works becoming part of the public domain). So, before you start using someone else’s creation – while thinking that you are in the clear – it would be best to consult privately with an intellectual property attorney to avoid costly litigation.
[i] See Williams, Matt – UCLA Entertainment Law Review 13.1 (the copyright term extension act also called by some the Mickey Mouse Protection Act) – https://escholarship.org/uc/item/2vb7780v.
[ii] See Britannica Encyclopedia – https://www.britannica.com/topic/Mickey-Mouse.
[iii] See How long can a Copyright last – https://www.copyright.gov/circs/circ01.pdf.
[iv] See examples: trademark registration #3598848, 5214940.
[v] See Frederick Warne & Co., Inc. v. Book Sales Inc., 481 F. Supp. 1191 (S.D.N.Y. 1979)
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