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How Mickey Mouse Keeps Changing Copyright Law

Mickey Mouse Copyright
Is copyright duration in the U.S. due to Mickey Mouse Copyright?
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When the Copyright Act was first enacted in the United States, the copyright duration was only 14 years. Today Copyright duration can last over a century in some cases.  Why such a drastic change?  Some say it is all due to a cute little mouse named Mickey.

Copyright duration had some changes over the 125-years before Mickey Mouse. In the Copyright Act of 1790, the 14-year term was renewable for one additional 14-year term, if the author was alive at the end of the first 14 years.  And it only applied to maps, charts and books. Registration and use of a copyright notice were also required.  If you didn’t meet those requirements, the work immediately entered into the public domain.  By 1831 it was changed to 28 years with a 14 year renewal and in 1909, copyright duration became 28 years with a 28 year renewal. Very few works actually maintained those copyright durations as only a small percentage of people even bothered to register copyrights in the first place, and of those that did, only a tiny fraction renewed them.

Disney now has until 2023 to figure out how to extend that date once again.

Enter Steamboat Willy, the first Mickey Mouse cartoon and the first animated short by Walt Disney in 1928.  Under the 1909 Copyright scheme, the Mickey Mouse character had copyright protection for 56 years (with the renewal), expiring in 1984. With the impending loss of copyright on it’s mascot, Disney is said to have begun serious lobbying push for changes to the Copyright Act.

Mickey Mouse and Copyright

In 1976, Congress authorized a major overhaul of the copyright system assuring Disney extended protection. Instead of the maximum of 56 years with extensions, individual authors were granted protection for their life plus an additional 50 years, (which was the norm in Europe). For works authored by corporations, the 1976 legislation also granted a retroactive extension for works published before the new system took effect. The maximum term for already-published works was lengthened from 56 years to 75 years pushing Mickey protection out to 2003.  Anything published in 1922 or before was in the public domain. Anything after that may still be under copyright.

With only 5 years left on Mickey Mouse’s copyright term, Congress again changed the duration with the Sonny Bono Copyright Term Extension Act of 1998.  This legislation lengthens copyrights for works created on or after January 1, 1978 to “life of the author plus 70 years,” and extends copyrights for corporate works to 95 years from the year of first publication, or 120 years from the year of creation, whichever expires first. That pushed Mickey’s copyright protection out to 2023.

The chart above illustrates the “Mickey Mouse Curve,” showing how copyright duration has changed close to each time Mickey Mouse is about to expire.

Not everybody has been happy about these changes due to our inability to use old work to create new artistic works. One author noted that we are “the first generation to deny our own culture to ourselves” since “no work created during your lifetime will, without conscious action by its creator, become available for you to build upon.”

Disney now has until 2023 to figure out how to extend that date once again.  In 5 years or so, we can probably expect to see stories about proposed changes to copyright duration, once again. It is unlikely that a company as strong as Disney will sit by and allow Steamboat Willie to enter the Public Domain. What would you do with Steamboat Willie’s Mickey Mouse if it enters the public domain?  Post your ideas in the comments section below.

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

43 Comments

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  • My son is an artist and loves to do various Mickey Mouse pictures….he is also autistic and needs work that is non traditional. It would be great if he could supplement his income by selling Mickey art without having to go through legal hoops.

  • I wonder if the constant extension of copyright law is unconstitutional due to the fact that it inhibits free speech and expression. Could there eventually be a supreme Court case on this matter?

    • It seems unconstitutional, but the Supreme Court has said that the extensions are constitutional. Also, remember that free speech has limitations but it is a constitutional amendment. The Copyright Clause is Article 1 Section 8 so it would be hard to make a free speech argument that the amendment is more important.

      • Wouldn’t the opposite be correct! The point of a constitutional amendment is to change the contents of the Constituion. Therefore the First Anendment freedom of speech prevails over a limitation on speech in the Constitution.

        On another point, the technology of 1790 was such that 14 years of exclusivity was reasonable. Books were high tech, expensive and commerce was slow. From handwritten manuscript to binding, publication would take months; from one coast to the Mississippi could take weeks. Today’s technology has speeded up the life cycle of copyrighted material such that a reasonable period of exclusivity is now much less than 14 years. The law has gone in the wrong direction.

  • The article implies Disney is the driving force behind all these copyright extensions. Has this been established as fact? Are there any other major beneficiaries of these extensions? Does Disney make political contributions? Do those contributions correlate to passage of the copyright extensions?

    Not defending Disney. Just wondering.

    • The information is anecdotal but it is a well-known meme in the industry. Disney does have a large lobbying organization as to do all of the major record labels and movie studios. So Disney is well known as the driving force. Do I have actual evidence, no but there are sources out there much more respectable than myself that also follows this reasoning who may have better evidence. But it also makes sense. But we will have to see what happens in a few years when the copyright is close to ending to see if there are new lobbying efforts.

    • Copyright only protects the execution of an idea but not the idea itself. So the character of Micky Mouse, such as the personality traits as well as the physical characteristics such as the ears are copyrightable, but not the idea of the mouse. Jerry is a very different character from Mickey.

      • Fantastic article Steve…..one thing still not clear can Jerry the mouse be used? Is it in public domain?

  • Regarding the last paragraph, I am wondering when Disney and other copyright holders will start pushing for another extension. In fact, I stumbled upon this article while trying to find out whether they’ve started yet. An activity I have been partaking in regarding all of this is periodically figuring out how many days until works start entering the public domain again. As of writing this, 1923 will be public domain in 1048 days, counting today. That is all.

  • Very interesting. Reminded me of this talk from Lawrence Lessig: https://www.youtube.com/watch?v=xVk77VQuPAY which steps through the radical change to copyright law in the last decades, mostly driven by Disney. I also just came across Disney World’s original real estate shenanigans. “Using a series of separate holding companies (so that nobody would realize that Disney was making a large commercial investment in central Florida), Disney’s representatives began buying up a very large, contiguous property from multiple land-owners. Disney acquired much, much more land than was needed for his immediate purpose (the initial development of the Magic Kingdom). By hiding the real buyer and disguising his intent, Disney way able purchase land much more cheaply than he otherwise would have been able to. Likewise, by building a theme park in the center of the property, he was able to boost the value of all of his surrounding real estate.”

    This seems borderline fraudulent. At LEAST unethical. I know (or am realizing) that this happens all the time, but this is an example of the rich having economies of scale capabilities (not to mention access to legal and legislative cover) that ordinary people don’t have. At the very least, shouldn’t one criticize the lack of transparency of acts like this that are essential for free market’s invisible hand?

    • There is nothing unethical about the practice undertaken here. I think you could more easily argue that it would have been unethical for the sellers to sell the land at inflated prices just because a big business wanted to buy the land and not a number of smaller businesses. No one was coerced into selling (at least not in the recorded details) and each sale would have given both parties equal opportunity to negotiate price.

  • In my humble opinion, Mickey Mouse should have not received copyright protection in the first place. That is due to the fact that Walt Disney had nothing to do with its creation. He borrowed the original stories of Mickey Mouse from the works of the Persian poet and satirist Ubayd-e Zakani. Zakani, born in the city of Qazvin in 1300 CE, was a satirist as well as a social critics of those in power at his time. His Moush-and-Gorbeh (Mouse and Cat) stories were intended to ridicule the powerful (represented by the cat) who were out to exploit the weak (the mice), but were outsmarted by the mice in every turn.

    • What you’re describing sounds like “Tom & Jerry”, not any Mickey Mouse cartoon that I’m familiar with (let alone the basis for the character in general).

      In fact, if Google is any indication, you’re the only one who believes that Disney’s “Mickey Mouse” stories are close enough to Zakani’s to warrant a lack of Copyright protection.

      There are plenty of “Walt Disney didn’t create Mickey Mouse” stories, but yours is the only one I’ve seen crediting Zakani instead.

  • United States Constitution, Article 1, Section 8, duties of Congress: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;” What part of “limited” does Congress not understand?

    Oh yeah, their income. It’s TOO limited.

    Prediction: Disney will buy out Congress, and extend the unconstitutional limits of the copyright law, yet again.

    Another prediction: People will more and more ignore the copyright law until it becomes a “wild west”. Because, the harsher the law, the more incentive to break or ignore it.

    • Unconstitutional? Seriously?

      I hate to break this to you, but it seems to be you who doesn’t understand “limited”. It carries no intrinsic value. It’s not a number. Anything that’s not “infinite” is, by definition, “limited”.

      They can extend it to 3,000 years, and, by definition, it’s still a limited amount of time.

      Just because you think you can arbitrarily decide what constitutes “limited” and then accuse others of breaking the law for violating your definition doesn’t mean that they’re actually breaking the law or that your definition holds water.

  • Correction: ” With the impending loss of copyright on it’s mascot”: it’s should be its. I was going to recommend this to students but the error makes me reluctant to do so. Can it be edited?

    • Are you kidding? Come on. There are so many misuses of that contraction. You’re being a little ridiculous. Simply add (sic) and be done with it!

  • The copyright for “Steamboat Willy” and for all the original black and white characters that appear in the short has likely expired. Under the 1909 Act, the notice requirements were very strict and Disney failed to follow them. The upshot of that was that the copyright never properly attached. But to fully test it, someone is going to have to produce a work with the original Mickey Mouse, get sued by Disney, and slog it out i the courts. (A law review article was published on the subject a number of years ago. See, Hedenkamp, Douglas A. “Free Mickey Mouse: Copyright Notice, Derivative Works, and the Copyright Act of 1909 (Spring, 2003)”. Virginia Sports & Entertainment Law Journal (2))

  • Technically, “Plane Crazy” was the first Mickey cartoon. “Steamboat Willie” was just the first one with synchronized music and dialogue.

  • What would you do with Steamboat Willie’s Mickey Mouse if it enters the public domain?
    I would do absolutely nothing.
    Sure the original may be out of copyright, but that only applies to the original film. I doubt after 100 years, there is a copy around. All the newer versions will have had colour correction, audio remixing, and encoding for either VHS, DVD, or HD. These activities are copyrighted and you can’t separate the new product from the original. So in reality, Disney and the other film makers already has a perpetual copyright. With the shortened lifetime of current and future recording mediums, Disney et al probably won’t need to extend the copyright duration. They just need to guard the original recordings.

    • It’s entirely possible to create a derivative work using the character of Mickey Mouse, as depicted in Steamboat Willie, without using the original film or anyone else’s derivative work. For example, I can make “Steamboat Willie Goes to Mars” once the 1928 copyright expires (assuming the Congress isn’t bought off yet again).

  • “What would you do with Steamboat Willie’s Mickey Mouse if it enters the public domain?”

    Commercially viable Disney porn.

  • My suggestion would be to let Disney specifically buy their way out. So Mickey stays as their property as long as they keep forking over significant amounts of cash; everything else becomes public domain (unless its owners also buy their way out). Tie the cash to something substantial (like Congressional salaries :), so that not only can Disney not reduce the payment, they are under constant pressure to pay more.

    Imperfect? You bet. But substantially better than having copyright just extended indefinitely.

    • Ideally, we should be shooting for equal protection under the law. Having deep pockets shouldn’t be an advantage over ones creative work.

      • Exactly.
        What I find most ironic about all of this however, is the fact that Disney has conceivably built much of it’s empire based on intellectual properties in the public domain.
        Segar’s Popeye (or Thimble Theater) also has a unique situation born from this.

    • …so Copyright holders should bribe members of Congress to give them & their creations special treatment?

      “Imperfect” is an understatement. “Insanely illegal” is the phrase you’re looking for.

  • I agree that copyrights law needs to be modified; in the other direction. Copyright duration should be made the same as patent duration. 20 years and your work “ceases to have any legal protection.” If somebody dreams up a song or dreams up the transistor or aspirin, the legal protection limits should be the same. The Beatles songs are well past 20 years and would free game for songwriters to build off of today.

  • Mickey Mouse is conceivably a source identifying trademark of Disney which provides protection in perpetuity. Why the need to keep a copyright?

    • Trademark protection is based on good and services being used in commerce. It ensures that nobody can use your name or identifying design, such as a mascot for other goods and services. The idea behind that is to make sure that consumers aren’t confused or tricked into buying something that they believe is one company and is actually another. But that won’t always protect your mascot in the same way as a copyright infringement count. It depends on the use of the character.

      There is also a question of damages. In copyright, if the work is registered, you can get minimum statutory damages which can sometimes be more lucrative than Trademark infringement damages. There are several other reasons too lengthy for this reply, but one last point is that when you sue, it is always good to have as many attacks as possible. You won’t be victorious on all your counts, or the awards may be dramatically different, and each has different proof requirements etc.

      So you don’t want to rely on just trademark as a protection since it may not work in all situations or get you the money that you want for the infringement. Although there is a lot of crossover, not every trademark infringement would be a copyright infringement and vice versa.

  • Excellent article though I would note two additional things that have made copyright law what it is today.

    1. Registration of a work is no longer required.

    2. Copyright now covers a large amount of additional “works”.

    These two things complicate the effort in securing rights for those that want to use the work. It has also created orphan works that makes use uncertain.

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