Business Copyright

How Mickey Mouse Keeps Changing Copyright Law

Mickey Mouse Copyright
Is copyright duration in the U.S. due to Mickey Mouse Copyright?

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.

56 Comments

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  • If mickey mouse ever entered the public domain i would use him as the logo for the phone/computer that I am trying to build.

  • 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 took a photo in an antique shop of a variety of Donald Duck figures, etc. I would like to do a painting from the phot. Is that permissible?

    • Sorry, I missed this one. While this would be normally considered fair use, there might be a trademark issue here, although I am not sure if the characters or aspects of characters have been trademarked. However, as long as you are only making a single work or a small fine art series, then you would be ok. Fine art is generally given a pass, however, if you were to use this image on pillow in Target or something, then you might have some issues.

  • 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.

    • 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.

      • Mike, that’s not even the issue. Ideas are not protected by copyright, not the expression of ideas. Mickey Mouse drawing are the expression of an idea. Zakani’s character is an idea, with only his works being the expression of an idea. Disney has never reproduced – to my knowledge – the works of Zakani in any form, so any relationship to them are irrelevant in the bestowing of copyright protection.

        • Well said. Additionally, if people bother to look at the history of Mickey Mouse, they would see that the character originated when Disney lost the rights to his first animated character, Oswald the Lucky Rabbit (created for Disney by his then business partner, Ubbe Iwerks). Disney had lost not only his main character, he lost his entire company to then Universal. Disney desperately needed a new character. Ubbe Iwerks created dozens of different animal characters, but none of them caught DIsney’s imagination. It wasn’t until Iwerks discovered an old drawing by Hugh Harman (a Disney animator from Kansas City who together with Carl “Rudy” Ising and producer Charles Mintz would leave Disney and work for Universal continuing the Oswald character) that showed mice surrounding an image of Disney. Disney took the idea of a mouse character. On a train ride returning from a business meeting, he sketched out the first image of Mickey. He also tried out various names on his wife. She hated his first choice, “Mortimer,” but thought his next suggestion “Mickey” was perfect.

          The specific execution of Mickey is the only thing that can be copyrighted, and was extraordinarily close to the image of Oswald. But of course Oswald was a rabbit. Mickey was a mouse. Disney knew there would be no infringement with his previous character. And despite the similarities in the overall look of the two characters, Mickey was distinct enough in execution to be individually copyrighted.

          If people want to get into an argument about Disney not really creating Mickey, they usually bring up the fact that Ubbe Iwerks (Disney’s business and artistic partner) was mainly responsible for the execution of Mickey Mouse and deserved at least a partial ownership and copyright. However, in truth, despite Iwerks’ suggestion of a mouse character, as mentioned, it was Disney himself that sketched out the very first image of Mickey. Ubbe then refined the drawing and was responsible for animating the first few Mickey cartoons including “Steamboat Willie.” One can easily make the argument, however, that not only did Disney himself create the original sketch, but also that Iwerks was working under contract to Disney which meant in return for his financial compensation, Iwerks work remained the property of the company. Iwerks did feel after a number of years that he was not fairly or adequately compensated or recognized for his contributions to the Disney company and left to start his own company. https://en.wikipedia.org/wiki/Ub_Iwerks Though he did later return to Disney in 1940 and finished the rest of his career working at Disney creating novel animation/film processes.

  • 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.

      • You can’t read “limited” in isolation. It’s explicitly connected to “Authors and Inventors.” In context, the original intent was that copyright protection would not extend beyond the life of the creator.

        • Unless you can point me toward the USSC ruling saying that, I have to disagree.

          If they wanted to say “for the lifetime of the artist or inventor”, they would’ve. Instead, they used the arbitrary “limited” with no further caveats–leaving me to believe that, like most other Constitutional issues, the intent was for the Court and Legislature to define the limit.

        • Yes, however “Authors and Inventors” can now be content-creating corporations such as film and television studios. They explicitly create their contracts with original artists/creators to claim authorship of the material. In feature films, in return for financial compensation, the writer surrenders legal authorship and ownership to the studio. The companies’ argument being that without their enormous financial investment and corporate development there would be no such content created. Which is inarguably true. How many individual artists/writers/directors are going to make a 150 million dollar film on their own? Or make a 7 million dollar television pilot and get a network to put it on the air? (If you want to retain full ownership of a film you need to raise or even better, put up your own money, for say a small film that costs a few hundred thousand or a million. But even then, if you want to get the film distributed or put on air, you’ll have to surrender a major amount of ownership to the distributor.)

          This sort of corporate authorship/ownership goes back to the beginning of the film and television industry. Disney worked this way. Ubbe Iwerks was Disney’s partner in spirit, but ultimately, truthfully, an employee of Disney and all his work developing Mickey Mouse for Disney was simply contractual work. He was compensated, but he did not negotiate any ownership (which doesn’t translate to copyright participation, yet ties one financially to the copyright for life).

          These days in feature films, writers receive no ownership or copyright participation. It’s a sore spot in the Writers Guild and several suggestions from writers about demanding authorship and copyright participation have been suggested, but never acted upon.

          One reason why many feature writers have migrated to television, is the fact that television show creators are actually given an ownership percentage. Which ties one into profit participation for the life of the creator. Of course, not that many shows become profitable. Studios (and to a smaller degree networks) invest so much money to produce television series that even the successful ones are usually running in the red during their original airings. It’s only when a series is successful enough to be sold in syndication that it has a chance to begin to earn actual profits. Still, TV studios and networks are laying out so much money to continue to create new series, that they tend to be very protective of their profits and the creators are often forced to have the studios audited or even sued to attempt to gain their rightful profit participation. BUT — the reality still remains in television that the creator will be given ownership participation. Which is a great thing. I believe, in full fairness, original writers/creators in both film and television should receive not only partial ownership, but also copyright participation. However, given the legal and financial stance of the major content-creating media conglomerates, that is unlikely to happen.

          In a previous comment, I make the argument for why these large media companies need and should receive fairly lengthy copyrights. I also make the same argument for individuals, for artists, writers, etc to be given not only lifetime copyrights, but lifetime plus 50 years (European model) for the benefit of the artist’s family or family estate. I think that’s plenty long enough for both individuals and for media companies. Though it’s easy to see why Disney and the other media companies want to extend the copyright length as long as possible.

  • 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.

        • It doesn’t matter if you create content based on public domain material.

          Once you create a distinct execution of an idea, no matter what the source material, it is copyrightable — it will be the artist’s copyright.

        • It doesn’t matter if Disney used works in the public domain for inspiration.

          It all comes down to an original and specific execution of an idea, no matter the source material.

    • …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.

    • Sounds like morphing copyright into patents, paying renewal fees. Interesting idea – flawed, of course, given the purpose of copyright being for economic protection of the creator and an incentive for the arts – but interesting nonetheless!

    • This is basically what is happening already, isn’t it? Lobby the politicians wallets so a new copyright law is passed extending it well beyond what it should be already.

  • 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.

    • As a creator/writer I disagree. I think the European model is fair. Lifetime of the creator plus 50 years. It allows the artist/creator to perpetuate financial remuneration for his/her family or family estate.

      I think that is adequate and fair length for the artist (or media company) and for the public.

      Fair use is allowed even under current copyright protection, so an artist can make art with Mickey Mouse. (It’s just that Disney is so absurdly aggressive about their copyright/trademark that most artists I assume shy away from playing around with Disney characters, but still fair use is available.)

      Imagine you’re a composer/song writer/musician. You’re still alive 20 years after writing a hit song. Or any song. And someone comes along and uses a loop of the opening guitar lick, or they take the key 5 piano chords of the song, and create a whole new song based on your work — and it becomes a hit. Is it fair you get no financial consideration for your work?

  • 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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