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Tuesday, February 07, 2023
Call: 917.596.1917

Call: 917.596.1917

I'd like to start by wishing everyone continued health and success as we enter into the holiday season and get ready to put 2020 behind us.  Now, let's turn our attention to an issue that has nothing to do with pandemics or politics.

On January 1, 2024, Mickey Mouse will be evicted from his private penthouse in the magical kingdom by the United States government and enter into the public domain.  What will this mean for Disney? For Mickey? For authors and artists the world over?  It could mean nothing or … everything.  Mickey is not just a money maker for the Company; he is one of the most coveted pieces of intellectual property the world has ever known.  In effect, Disney is Mickey; they are one entity, and one can bet that Disney will not allow its crown jewel to expire gently into the night.

Copyrights have a long and distinguished history in the United States of America, holding a position within the United States Constitution between the Emoluments Clause and the rights afforded to United States citizens.  Article 1, Section 8 Clause 8 grants Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventor the exclusive right to their respective writings and discoveries.”  Congress exercised its power over copyrights by enacting the first United States Copyright Act of 1790, which limited exclusive copyright ownership to a 14-year term with a right to extend the term by an additional 14 years.  A subsequent copyright act in 1831 extended the protected terms to 28 years (with a 28-year renewal), but further extension of copyright protection did not receive support from Congress until 1976.  That year, The Walt Disney Company, understanding that the copyright of its most famous property was about to expire, flexed its mighty mouse muscle, successfully lobbying Congress to pass legislation changing the formula for copyright protection to an author’s life plus an additional 50 years or, for a corporation, 75 years from publication, thereby extending Disney’s protection over Mickey to the year 2003.  But Disney was not finished with Congress.  Aggressive lobbying by the House of Mouse resulted in the passage of the Sonny Bono Term Extension Act of 1998 to extend the current copyright term to “life of the author plus 70 years” and, for corporations, the shorter of 95 years from the year of first publication or 120 years from the date of creation.  Once again, Congress bent the knee to lobbying efforts, prolonging Disney’s exclusive ownership of Mickey by an additional 20 years.

What’s the harm, one may ask?  Shouldn’t Disney retain the right to control and profit from its intellectual property?  Based on the legislative history of copyright law, Congress intended for copyright laws to protect income for two generations of an author’s descendants, but it also recognized a societal need to attach an expiration date to that protection.  The government reasoned that (i) the extension of copyright laws for an overly long period may have the unintended effect of artificially boosting a company’s profits, potentially squashing competition and (ii) the public should have the creative freedom to make derivative works of a property, much as Disney had by adapting the works of the Brothers Grimm and other authors, which would ultimately benefit society as a whole. In fact, Disney became a profits juggernaut, in no small part because of its use of the public domain, by producing and distributing movies that include, but are not limited to, Aladdin, Alice in Wonderland, Cinderella, and Tangled. Should Disney successfully lobby Congress to extend its copyright again, authors will be unable to craft new, imaginative tales about these characters, thereby depriving the world of artistic accomplishment.

On January 1, 2024, copyright protection for Steamboat Willie expires, and, with it, Disney’s copyright protection over the original incarnation of Mickey.  But don’t be fooled into thinking that artists and writers will have license to run roughshod, creating innovative new content and art for this character. Disney still owns copyrights for subsequent versions and variations of Mickey (think about the addition of the white gloves and yellow shoes - not included in the Steamboat Willie version - which would be protected under separate copyright) in addition to federally registered trademarks that safeguard the Mouse.  A federally registered trademark can protect a mark that exists in the public domain as long as that mark has obtained what is called “secondary meaning.” Secondary meaning is established when the public associates the mark with the owner of that mark. Upon seeing it, the public will immediately identify it with a brand.  To the public, Disney and Mickey are inseparable, and Disney has successfully registered a variety of images and verbiage binding Mickey to Disney. Note that these trademarks don’t expire – ever; therefore, even if Disney was to lose copyright protection over Mickey, it would retain the right to weaponize its trademark rights against third parties seeking to monetize books, toys, apparel, etc., featuring the iconic character.

If the past is prologue to the future, do not be surprised if Disney once again exerts its Empire-sized (it does own the Star Wars franchise) influence to lobby Congress to extend its copyright “To infinity and beyond!” (With my apologies to Buzz Lightyear of Star Command for commandeering his catchphrase – copyright to expire around the year 2090).