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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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September 15, 2008

Disney and the Copyright on Mickey Mouse

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Posted by Alan Wexelblat

Disney is famous for getting copyright-term legislation passed that extends protection on old materials and thus protects their interest in Mickey Mouse, their iconic character. One of the first appearances (Wikipedia claims it's the third appearance) of this character is in the cartoon short Steamboat Willy. This short has been at the center of much of the debate around copyright on the character.

Recent work suggests that, in fact, the character in Steamboat Willie is not copyrighted any longer. If that's so, Mickey Mouse as he's presently constructed is probably a too-close derivative work to be claimed under separate copyright and thus the mouse may be out.

In a recent PATNEWS email letter, Greg Aharonian reviewed some of the scholarship around this issue. (This summary reprinted from PATNEWS with Aharonian's permission.) Start with a popular-press story from late August by Joseph Menn in the LA Times. In this story, Menn traces the value of Mickey Mouse to Disney and some of the corporation's fights to keep control of the character. Menn introduces us to "[t]hin, pale and bespectacled" Gregory S. Brown, a former Disney researcher who has unearthed some uncomfortable facts.

First, Brown found a court case in which Columbia convinced a judge that a failure to renew a particular copyright had let the image of the popular kid's ghost "Casper" fall into the public domain and thus they were free to use that image in their movie Ghostbusters. Then Brown found that Disney had made a similar lapse in protecting a 1933 Mickey Mouse short called "The Mad Doctor." If like follows like, then the images (cels) from that short should be in the public domain and he could make some money selling copies of the cels. Of course, you can see where this ends up: Disney sues, Brown loses to the tune of half a million dollars, case closed.

Except, maybe not. In a move that was too late to save his own case Brown introduced evidence from a 1993 rerelease of "Steamboat Willie." In that release, there were three parties named as possible owners of the Mickey Mouse character, a confusion that could nullify copyrights. Don't ask me to explain it - even Aharonian, an IP lawyer, calls this bit of law "arcane rules". Menn's article quotes a treatise called Nimmer on Copyright as saying that "a copyright is void if multiple names create uncertainty." Three names? Uncertainty! And thus voided copyright.

Or so conclude a couple of people who've looked at the issue. One, an ASU law student, posted a paper on the topic in 1999. Here is her punchline:

Disney published its common law protected expression without the proper copyright notice attached to the films and on the club materials. The statute of limitations to rectify that omission has long since elapsed, as has the statute of limitations for Disney to file any infringement claims based on that omission. As a result of its omissions and inaction, Disney forfeited its copyright claims to Mickey Mouse. Mickey has fallen into the public domain where all are free to copy and enjoy him.

Of course, here "free" means "anyone with the resources to defend this claim against Disney's army of lawyers."

Likewise a Georgetown University law student, Douglas Hedenkamp, agreed and published his review first online and then later in an article in the 2003 edition of the Virginia Sports and Entertainment Law Journal. His conclusion is similar:

Ultimately, if all the material incorporated into the films published without notice is in the public domain, this means that the character Mickey Mouse is himself public domain material. Mickey would still be protected by the copyrights in his other films and products, but those copyrights would only extend to the new matter that is original to them. [FN161] The aspects of Mickey's image and character that were derived from the original public domain films cannot be protected by virtue of their inclusion in new works; this is true under both the 1909 Act and the Current Act. [FN162] This means that the public is free to exercise all of the rights that the Copyright Act would otherwise reserve to the holder of a valid copyright. [FN163] This includes the rights to copy, display and distribute the films, and to make, display and distribute derivative works based on those films and the Mickey Mouse character. [FN164]

So, what happens now? At the moment all this is so much theorizing. As noted, the judge in the original case never ruled on the validity of these challenges, only that they came too late to save Brown's business.

The challenge, as Aharonian puts it, is to find someone with deep enough pockets to put this to the test. If someone was to distribute material Disney claims is its copyrighted work (e.g. digital reproductions of early Mickey Mouse images) then Disney would no doubt sue to put that person out of business. And in court would possibly be required to defend its most valuable IP asset.

Will such a thing happen? Probably not. Although the publicity would be great, and there's a lot to be said for taking down the Mouse Empire, few people or organizations have the resources to make this kind of play, especially with the likely result being that even if they win they won't reap any benefits to themselves.

Them as as the gold still makes the rules.

Comments (6) + TrackBacks (0) | Category: IP Markets and Monopolies


COMMENTS

1. Harry Brindley on September 16, 2008 9:53 PM writes...

Can a copyrighted work change its IP identity and become a trademark? I think Disney can now reasonably claim that Mickey Mouse has become a trademark -- a clear indication of the source of Disney product. A trademark, for as long as they use it and defend, it has no term. Is there a legal opinion on this?

Permalink to Comment

2. Jim Lai on September 17, 2008 8:45 AM writes...

Trademarks, unlike copyrights, can last forever and persist as long as they are used in commerce. It's likely, therefore, that Disney would still be able to claim trademark protection in the Mouse even if copyright protection was found to be invalidated.

Permalink to Comment

3. drwex on September 17, 2008 9:18 AM writes...

I don't think intellectual property items can morph categories. Each protection has to be applied for separately.

While it's possible that the modern Mickey Mouse design could be trademark protected (and may be, for all I know) the assertion made in the literature cited is that the original representation of Mickey (which is significantly different in several features - just look at the nose, for example) is not protected.

If the original is not protected then there's a subsequent question as to whether you can create a protected image that is a derivative of a public image. I don't think, for example, that I could create a styled representation of Abraham Lincoln and claim that as a trademark. But IANAL.

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4. Carolyn Middleton on December 20, 2010 3:22 PM writes...

I copied this tigger from a site where u could download for free. But am concerned now. Does Disney still own copyright for Tigger? Was looking for official Disney site to find out, or try to get permission - but couldn't find it. Can someone please send info on that site, and the status of Tigger?

Permalink to Comment

5. paul driver on January 18, 2012 4:30 PM writes...

I have a copyright 10oz glass that is of the character Gram and unfornunatly has been cleaned in a dishwasher. It's color is gone but the character still remains in mint condition. I have looked everywhere for this glass on the web but have found nothing. Can you help me to define this glass and estimate it's value ?
Sincerly Paul Driver

Permalink to Comment

6. Disney Quotes on May 1, 2014 1:14 PM writes...

Thanks for sharing your thoughts about disney quotes.
Regards

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