Mickey's 95-year copyright expires: How Disney can protect the modern versions of characters

Almost a century after his big screen debut in 1928, the Steamboat Willie version of the Mickey Mouse entered the public domain on 1 January in the US, leading to potential remakes, recreations, adaptations, as well as legal battles with Disney. This has gotten the public and industry players talking as to what copyright battles lie ahead and how Disney can safeguard the copyright of the modern versions of Mickey Mouse.

Media intelligence firm CARMA saw over 6,000 mentions across social platforms over the past week regarding the public domain entry of Steamboat Willie version of Mickey Mouse, with approximately 33% expressing a positive sentiment and 7.3% reflecting a negative sentiment.

The positive sentiments primarily stemmed from netizens who expressed joy in seeing Mickey Mouse finally becoming accessible to the general public. For many, this marked the first time that Mickey Mouse truly belonged to the people, said CARMA's HK general manager Charles Cheung. 

"However, negative sentiments emerged from netizens discussing instances where Mickey Mouse appeared in unconventional contexts, such as the slasher film "Mickey's Mouse Trap" and the horror game "Infestation 88". These netizens felt that these appearances tarnished their childhood memories associated with the characters," he added.

"It is worth noting that we also saw discussions among some netizens that the Mickey Mouse case will establish a precedent for other characters entering the public domain in the future."

The Walt Disney Company said it has no comment regarding the incident as MARKETING-INTERACTIVE reached out.

In fact, Disney had been striving to extend its copyright of the famous cartoon characters before the Steamboat Willie version of Mickey Mouse was set to expire in 1984. After years of lobbying and discussions, in 1998, Disney successfully made a deal with other entertainment companies to extend copyright protections of its characters plus 70 years for a maximum of 95 years. 

What does the 95-year copyright expiration mean?

While Disney's earliest copyright on Mickey's earliest versions may have expired, potential copyright battles with Disney are foreseeable. On the legal front, Anna Lau, partner at Ravenscroft & Schmierer said it depends on whether Disney would still adhere to its earlier position on copyright protection (i.e. lengthening copyright protection terms and expanding categories of copyrightable works), or adapt to the new movements brought by copyright law reform (i.e. pushing the balance back in copyright between copyright owners and users).

“We are now living in an era of remix and user-generated content (UGC) can be found in every aspect of our daily work, with the aid of digital tools. But the copyright law on remix and UGC remains uncertain and varies across different jurisdictions.”

As such, it will not be surprising to see Disney consider taking advantage of these new copyright rules and movement to control the use of the new Mickey, she added. “The legal battle will be different from the one we have seen in the old days.”

Disney may also be strategically selective about initiating legal action, said James Choi, IP specialist and partner at Ellalan. "For example, when the original Winnie the Pooh entered the public domain, the bear was featured in a new horror film 'Blood and Honey'. However Disney never made any public statements about it," he added.

While Disney has a reputation for litigating, it also has to bear in mind that additional attention might drive publicity, he said. "It will be interesting to see when they may exercise the choice to hold back."

On the other hand, it is also important to note that copyright protection extends to derivative works based on the original creation. That means the public can use only the initial avatars of Mickey and Minnie, said Joshua Chu, chief risk officer at Marvion, a tokenised IP trading platform. A derivative work refers to a new work that incorporates elements or characters from a preexisting copyrighted work, he explained.

“In the case of Mickey Mouse, Disney has created numerous derivative works over the years, including new animations, 3D and 4D renders, movies, comics, merchandise, and more. These derivative works, being original creations that draw from the copyrighted character of Mickey Mouse, are subject to their own separate copyright protection,” he added.

How can Disney safeguard against consumer confusion caused by unauthorised uses of Disney characters?

As various versions of Mickey Mouse are already out in the market, such as a slasher Mickey movie and a video game featuring a remixed version of the character, a looming question remains - how can Disney avoid consumer confusion caused by unauthorised use of Disney characters?

While the copyright of the 1928 version of Mickey has expired, Disney still owns its trademark – the purpose of which is precisely to prevent consumer fusion as it allows customers to identify the source of goods as Disney and distinguish them from others, said Nicole Chu, IP practitioner in Hong Kong.

“Therefore an important limit to the public’s use of the 1928 version of Mickey is that they can’t mislead/confuse consumers into thinking that its own version of Mickey is a product made by Disney,” she added.

Speaking of possible measures to be taken, Disney can proactively employ the strategies mentioned earlier, including trademark protection, brand enforcement, licensing control, and public education, to protect their IP, said Marvion’s Chu.

“However, it is crucial to consider the bonafide of the infringing party, as they may not have been aware that the IP was still under copyright protection. Careful evaluation and understanding of all these factors are essential in effectively safeguarding against consumer confusion and ensuring the protection of Disney's intellectual property rights,” he added.

On the other hand, it is important to strike a balance between protecting intellectual property rights and maintaining a positive relationship with the fan base. While safeguarding IP is crucial, an overly aggressive approach to IP protection can risk alienating or even damaging the fan base, said Chu.

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