Jesse Kirkland is a J.D. candidate, 2021 at NYU School of Law.
Many who are interested in copyright issues
have heard the phrase, “Mickey Mouse will never enter the public domain.” Often,
these words are accompanied by a knowing grimace — a morbid joke one makes when
attempting to grapple with an unpleasant fact of the world, leaving no remedy
but coping mechanisms. While our collective grief may have benefitted from the
gentle balm of comedic nihilism,
the prospect of a creative work never entering
the public domain is no laughing matter. In fact, indefinite copyrights undermine
the Constitution.
The foundation of American copyright law and,
by extension, our free-for-all concept of the “public domain,” is rooted in the
Constitution, which enshrines the purpose of copyright protections in the
United States as aiming “[t]o promote the Progress of Science and useful Arts,”
and that the “exclusive Right” afforded by
copyright shall be for “limited Times.”[1] The Constitution
thus conveys that, once those rights reach their time of expiry, the work is to
become accessible to the public at large. Perpetuating exclusionary rights
through the grant of copyright extensions is antithetical to that purpose.
Though the copyright regime directly
provides
benefits to authors, it provides such incentives as a mere means to its end goal:
promoting creation and advancement for the benefit of society as a whole.[2] Mickey’s
eternal copyright protection would be putting the proverbial cart before the
horse and converting what was meant to be an incentive for creativity into a
roadblock for the same.
The fear of perpetual protection is not
unfounded. Over time, the duration of copyright protection has evolved to allow
for longer and longer terms. The original Copyright Act of 1790 allowed for a
maximum of twenty years of copyright protection. In 1909, there were major
revisions to the terms of copyright protection, increasing the maximum period
of protection to fifty-six years. Then, in 1976, copyrights for works by individual
authors
were extended to the entirety of their lifetimes, plus an additional fifty
years, and at the same time, works that originated from corporations were
reserved a copyright lifetime of seventy-five years.[3] Meanwhile,
the most recent copyright term extension, which added another twenty years on
top of the 1976 provision, derives from the
Sonny Bono Copyright Term Extension
Act of 1998 [CTEA], which came to fruition through the joint lobbying efforts of
the heirs of famous music composers as well as major media corporations, including
the Walt Disney Corporation.[4]
The CTEA’s effect on the public domain was
stark. In January 1998, all works that were published in or
before 1922 entered
the public domain, whereas the following year, there were no new expiries of
previously enforceable copyrights. On account of the CTEA’s retroactive application
to works that had already been created but had not yet entered the public
domain, every work that would otherwise have had its copyright protection expire
in or later than 1999 received a two-decade extension. Dissenting in Eldred
v. Ashcroft, Supreme Court Justice Stephen Breyer
forecasted detrimental
consequences:
The economic
effect of this 20-year extension — the longest blanket extension since the
Nation’s founding — is to make the copyright term not limited, but virtually
perpetual. Its primary legal effect is to grant the extended term not to
authors, but to their heirs, estates, or corporate successors. And most
importantly, its practical effect is not to promote, but to inhibit, the
progress of “Science” — by which word the
Framers meant learning or knowledge.
. . .[5]
Thankfully, it seems like the era of perpetual copyright
extension may be at an end. In January of this year, twenty years after the
passing of the CTEA, new [or should I say “old”] works finally entered the
public domain. And while Disney and other interested parties had lobbied for
the CTEA in 1998, today’s political climate is such that similar efforts are
unlikely to bear fruit. Specifically, contemporary roadblocks include [1] a
well-organized lobby against more expansions, which did not exist in 1998, and
[2] the lack of a compelling argument in favor of copyright expansion that
would hold up to scrutiny.[6]
While the arguments in favor of extension in 1998 were
just as shallow as they are today, back then there was no organized opposition
to the CTEA, so the lobbying power of media conglomerates was enough to win the
day.[7] Today,
prominent tech giants like Google are aligned with grassroots communities, such
as Wikipedia editors and
Reddit moderators, presenting a much more formidable
resistance than existed previously.[8] Due to this new power dynamic, we can
expect to see the Disney classic Steamboat Willie, which features the
first published appearance of Mickey Mouse, enter the public domain in January
2024.[9]
So, what exactly does this mean? Will you be able to distribute your own copies of Fantasia, sell unlicensed Disney merchandise, and so on? Not so fast. While it is true that Mickey will soon be accessible to all, it is crucial to understand which version of Mickey Mouse will become publicly accessible and which ones will still be under lock and key in the “Disney vault.” It is only the rendition of Mickey Mouse that is in the film Steamboat Willie — and also The Gallopin’ Gaucho, released in the same year — that will be free from copyright protection. While this may seem like a minor technicality, it is important to consider that the iconic Mickey Mouse character design with which we are all familiar today — the one featured in commercials for the Disney theme parks, displayed on Disney-branded backpacks, and at the forefront of classic movies like Fantasia — is not the same version of Mickey featured in his 1928 debut. In the accompanying images, the image on the left is from Steamboat Willie, and the image on the right is the more contemporary permutation of Mickey that is featured, with only minor variations, across many of Disney’s publications and marketing materials today.
To highlight a few of the differences between Steamboat Mickey and his contemporary counterpart, consider the following unique characteristics of the original:
1] Mickey is in black and white. While there is a
promotional poster for Steamboat Willie that colorizes the character, Mickey is monochrome in the original production.
2] Mickey is not wearing the white gloves that are always worn in today’s version. [It would not be until The Opry House, released in 1929, that these first appear. ]
3] Mickey’s eyes are simple black dots. [The first major appearance of Mickey with white eyes and black, expressive pupils would be in Fantasia, released in 1940. ]
So why do these differences matter? In short, there are some things that the public will be allowed to do as it relates to Mickey Mouse and some that will remain off limits. While the full details of copyright-related exclusionary rights are rather complex, in simple terms, a copyright owner of a work has the exclusive right to [1] reproduce copies, [2] create derivative works, [3] distribute copies, [4] publicly perform the work, [5] publicly display the work, and [6], regarding sound recordings, publicly perform the work via digital transmission. Once Steamboat Willie has entered the public domain, Disney’s exclusive rights to all of the above ends.
The implications for the public’s rights are fairly straightforward for most of these uses. Come January 2024, anyone can copy, distribute, and publicly perform or display Steamboat Willie in part or in its entirety. There is very little Disney can do to prevent this [unless there is a violation of an associated trademark, which, as a separate legal subject, falls outside the scope of copyright law as well as this blog post]. With respect to derivative works, however, the consideration becomes a bit trickier.
A derivative work is statutorily defined as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” For example, Rocky II is a derivative work of the movie Rocky. It uses the same main characters and relies on and refers to the plot established in the original Rocky. Rocky and all its sequels are still under copyright protection and thus, the copyright owner has exclusive rights over the creation of derivative works based on the movie Rocky, including works that refer to the original’s plot or characters.
The Rocky example would become much more complicated if the first Rocky movie were in the public domain, while the rest of the movies were still under copyright protection. All of the plot and characters from the first movie would be unprotected, unlike any plot or character that had first appeared in one of the sequels. For example, a member of the public would be able to write her own sequel to the original Rocky without infringing upon a copyright but would not be able to reference or build upon any of the plots or character developments that first appear in Rocky II. Assuming current copyright laws remain unchanged in 2024, the public will then become free to both create new stories involving the original iteration of Mickey Mouse and change the character design to incorporate original elements. What the public will not be able to do, however, is to create a derivative work that would infringe upon the contemporary rendition of the character design. This complicated paradigm becomes even more fraught when one considers that there are more than just two versions of Mickey Mouse. Disney’s mousy mascot has undergone many permutations over the course of decades, so those seeking to capitalize on Mickey’s first step into the public domain ought to proceed with caution.
[1] U.S. Const. art. I, § 8,
cl. 8 [emphasis added].
[2] See,
e.g., Pierre N. Leval, Toward a Fair Use Standard, 103
Harv. L. Rev. 1105, 1107 [1990]
[“The copyright is not an inevitable, divine, or natural right that confers on
authors the absolute ownership of their creations. It is designed rather to
stimulate activity and progress in the arts for the intellectual
enrichment of
the public.”].
[3] Peter S. Menell et al., Intellectual Property in the New Technological Age: 2018, Volume
II: Copyrights, Trademarks and State IP Protections, at 494–95 [2018].
[4] Id. at 613.
[5] Eldred v. Ashcroft, 537 U.S. 186, 243 [2003] [Breyer, J., dissenting]
[citing E. Walterscheid, The Nature of
the Intellectual Property Clause: A Study in Historical
Perspective 125–26
[2002]].
[6] See Timothy B.
Lee, Mickey Mouse Will Be Public Domain Soon, Ars Technica [Jan. 1, 2019],
//arstechnica.com/tech-policy/2019/01/a-whole-years-worth-of-works-just-fell-into-the-public-domain/.
[7] See Menell et al., supra note 3, at
615.
[8] Lee, supra
note 6.
[9] See Michele Debczak, Why
Mickey Mouse Could Soon Be in the Public Domain, Mental Floss [Jan. 9, 2018],
//mentalfloss.com/article/524325/why-mickey-mouse-could-soon-be-public-domain.