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Legal Issues: Mickey's Birthday Present: A Larger Public Domain.

I don't watch current television all that much, but I do watch enough sports and occasional other programming to have noted that The Walt Disney Co. has been heavily advertising the 90th birthday of Mickey Mouse since mid-2018. Well, happy birthday, Mickey! Mickey Mouse has a fair amount of significance in copyright law in that he sometimes gets the blame for the continuing extension of the terms of a copyright.

When Mickey Mouse was first seen in the cartoon Steamboat Willie in 1928, his copyright protection extended for 28 years, with a renewal of an additional 28 years, or until no later than 1984. However, the Copyright Act of 1976 (Title 17 of the U.S. Code; law.cornell .edu/uscode) extended Mickey's copyright from the original 28-plus-28 years to a flat 75 years, or through 2003. (Because Mickey was created under corporate authorship, he received a flat 75-year copyright. Works by non-corporate authors were copyrighted for the life of the author plus 50 years.)


With 2003 looming, The Walt Disney Co.--among others--began lobbying for another extension in the term of copyright, and Congress responded in 1998 with the Sonny Bono Copyright Term Extension Act (CTEA; Public Law 105-298 at The CTEA automatically extended every copyright by an additional 20 years.

With this, corporate-authored works such as Mickey Mouse were copyrighted for 95 years from their original date of publication, and works under non-corporate authorship were copyrighted for the life of the author plus 70 years. Mickey's copyright expiration was thus pushed to 2023. In fact, the copyright in every work that was covered by a U.S. copyright was extended 20 years, meaning that since 1998, no copyrighted U.S. work has had its copyright expire, allowing it to go into the public domain--until now.


Works published in 1923 that are under a corporate copyright--either through corporate authorship or corporate ownership of the original author's copyright--saw their copyrights expire at midnight on Dec. 31, 2018, 95 years after their original publication. So, as of Jan. 1, 2019, the public domain got a lot bigger. Among the works that were newly introduced into the public domain were Robert Frost's Stopping by Woods on a Snowy Evening ("The woods are lovely, dark and deep / But I have promises to keep / And miles to go before I sleep"); Kahlil Gibran's The Prophet, Cecil B. DeMille's original, silent version of The Ten Commandments-, and dozens of other movies, pieces of music, books, and literary works.

Works in the public domain are freely usable by all. Anyone can annotate, expand, or rearrange works or publish new and translated editions. Users can develop sequels, prequels, fan fiction, character pieces, and other derivative works. Libraries and content providers can release electronic versions or create digital archives of public domain works. Users who were paying royalties for the use of copyrighted works will no longer have to do so. But copyright owners, whether publishers or the estates of the original creators, will no longer earn an income from their copyrights.


As noted, the term of a copyright has expanded considerably, and controversially, since the foundations of copyright law in England and in the early U.S. The first copyrights were only for 14 years (renewable for an additional 14), and then only available for selected works. As previously mentioned, subsequent copyright laws expanded protection to 28 years, then 75 years (or life plus 50 years), and finally, 95 years (or life plus 70 years). Contrast that with patent law protection, which started similarly at 14 years and only changed modestly to its current term

of 20 years. Consequently, many people have challenged why copyright lasts so long when a work's commercial life is rarely that long. However, trademarks, in theory, continue as long as the trademark owner keeps promoting the product and consumers keep associating the trademark with a specific product.

Copyrights are supposed to be limited in term, in no small part due to the Constitution's Copyright Clause. Article 1, Section 8, Clause 8 gives Congress the power to create copyright and patent laws in order "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." After its passage, the CTEA was subject to a legal challenge. This suit argued that by continually extending copyright terms, Congress was violating the "limited times" provision. The Supreme Court rejected that argument, indicating that even a long 95 years is still a "limited time."


Since then, however, Congress has not proposed a new extension and does not seem particularly interested in one. Even though intellectual property issues don't generate as much partisanship as other matters, Congress is not likely to focus too much energy on these issues in the near term. In the longer term, there have been ongoing discussions, roundtables, and other behind-the-scenes activities for a broader copyright reform law that include conversations about the duration of copyrights, but such efforts can often take years before legislation is enacted.

Most critically, however, is that the technology and content landscape has shifted dramatically since the CTEA was enacted. The internet as a whole, as well as technology companies and content providers such as Google, Amazon, and Apple, have emerged as forces to offset large content owners such as The Walt Disney Co., MGM Studios, Inc., and Warner Bros. Entertainment, Inc. The emergent creative community that has flourished with fan fiction, parody and satire, mash-ups, and the creation of other new works has shined a stronger light on the rights and needs of users of copyrighted work than existed in 1998. Collectively, the balance of interests may be leaning against longer copyrights and may encourage shorter copyrights or a return to renewable copyrights in any future copyright reform.


As for Mickey Mouse, the copyright on Steamboat Willie will expire at midnight on Dec. 31, 2023. However, The Walt Disney Co. can and likely will assert that only the copyright for the version of Mickey Mouse that was depicted in Steamboat Willie that will expire. Subsequent iterations of Mickey Mouse as he appeared in later cartoons, The Mickey Mouse Club, the Disneyland Resort and Walt Disney World Resort, and 21st-century digital representations will likely be claimed under separate copyrights. In addition, The Walt Disney Co. still has a very strong trademark claim over Mickey Mouse that will limit some kinds of new uses, but not necessarily others. Come Mickey's 95th birthday, the biggest gifts might be to The Walt Disney Co.'s copyright and trademark lawyers.

George H. Pike is the director of the Pritzker Legal Research Center at Northwestern University School of Law. Send your comments about this column to
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Author:Pike, George H.
Publication:Information Today
Date:Mar 1, 2019
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