Steamboat Willie is now public domain! But what does this actually mean for Mickey Mouse?

What follows is a transcript of the above YouTube video, where I explain public domain and copyright terms in the U.S. in the context of our favorite corporate Mouse… while you watch the entirety of the now copyright-free short film Steamboat Willie.

It is January 1, 2024 as I am posting this video. And this is a day that many people thought might never come — the day that the character of Mickey Mouse officially enters the public domain and is no longer under copyright protection. Because Steamboat Willie, the Disney short that you are watching at this very moment, was officially released in 1928. 96 years ago. And in the United States — now, anyway — copyrights expire after 95 years. Or beyond corporate ownership, for works published in 1978 or later. the life of the author plus an additional 70 years. Which of course is bound to be even longer than that. So celebrate Mickey Mouse, because you’re not going to see public domain Harry Potter or the like for a very long time.

But why did it seem like this day would never come? Because Steamboat Willie’s copyright was originally supposed to expire in 1984, 56 years after it was originally released. Because that’s how long copyright used to last… but wait, let’s back up.

What is the public domain anyway? The public domain consists of all the creative works that no one owns the rights to. Which means that anyone can legally use them without any kind of permission. And one way that works make their way there is because copyrights expire. And this is by design! In the United States, this is even in the Constitution. 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. We all know that patents expire — thank goodness for generic drugs, right? — but so do copyrights. The public domain helps us to build upon the creativity of the past and also preserve that past for future generations.

The public domain is how we have so many awesome and creative adaptations of, say, Jane Austen’s Pride and Prejudice. There are currently TWO musicals based on The Great Gatsby in production for Broadway, because its copyright expired one year ago. And of course, there are tons of works that are in the public domain because they were created before copyright even existed. Shakespeare, for example. IMDB lists over 1,500 films and TV shows with Shakespeare as a writing credit. And what about the works of the Brothers Grimm? Or Hans Christian Andersen?

Snow White. Cinderella. Rapunzel. The Little Mermaid.

… huh. It seems like Disney’s success was literally built off of the public domain. But Disney has always been quite protective of their copyrights. And of their Mouse in particular.

In the 1970s, copyright protection was 28 years, with an option for another 28 years upon renewal. And Disney was one of the corporations that lobbied hard for that term to be extended. As part of the Copyright Act of 1976 — which did other important things too, like codifying fair use — there was an extension and Mickey’s new expiration date was 2004. But in the mid-nineties, the lobbying started again. And the Sonny Bono Copyright Term Extension Act — yes, that Sonny Bono, who was a congressman at the time — extended everything by another 20 years, in 1998.

And by the way, the old copyright terms did not go quietly. A constitutional challenge to this law went all the way to the Supreme Court. Eldred v. Ashcroft. And the part of their argument was: hey, the constitution? It says ‘for limited times.’ If every time Mickey’s copyright is about to expire, the term is extended, that doesn’t seem very limited. But the court disagreed. They basically said that as long as the limit isn’t “forever,” that limit can change to whatever congress wants.

So, many people thought that Disney would keep up this fight. But I personally don’t find it that surprising that this day has finally come. It was inevitable. And it would have been both a hard fight and a PR nightmare to postpone this yet again. Plus — there are plenty of ways that Disney still has control over Mickey Mouse.

One important nuance to this situation is that only Steamboat Willie hits the public domain today. And the mouse that you’re seeing right now is not quite the same mouse that you would find most familiar. He’s black and white. He’s not wearing gloves. He’s got a tail. And there’s so much personality that can come out of a 7 minute short with no speaking lines. And later versions of Mickey — for example, the one in the very recognizable Fantasia — are still under copyright. Fantasia has twelve years left.

A relevant piece of precedent for this situation might be Sherlock Holmes. Sherlock’s first appearance was in ‘A Study in Scarlet’ in 1887. And his last appearance was in 1927. 96 years ago today. So it wasn’t until last year that ALL of Arthur Conan Doyle’s Sherlock Holmes stories were in the public domain. And there were many years in which some stories were and some were not. Now most of the well known Sherlock Holmes adaptations — for example, BBC’s Sherlock — did the safe thing and got licenses from Conan Doyle’s estate. But in 2014 there was an appellate court decision in the U.S., Klinger v. Conan Doyle Estate, that clarified something interesting with respect to the public domain. The case was about a Holmes anthology. And the estate argued that because some Holmes stories were still under copyright protection, the character was off limits. But the court disagreed — with an important caveat. Characteristics of Sherlock Holmes that came from the later stories were STILL protected by copyright. So Sherlock Holmes was fair game… so long as he didn’t like dogs, and his sidekick Watson didn’t have a second marriage. This concept was also almost tested again in 2019 when the Conan Doyle estate sued Netflix over the Enola Holmes film, claiming that in part the character of Sherlock Holmes was too warm. That clearly their Sherlock, who was also more respectful of women, was clearly based on the later copyrighted character. That lawsuit fizzled out, perhaps settled, it was a little unclear.

But it’s likely that if Disney tries to guard Mickey’s copyright as much as possible, that they will make similar arguments about which versions of Mickey are being used. Will it matter if he’s wearing gloves? Maybe.

But perhaps even more importantly, Disney has a trademark in Mickey Mouse. And trademarks don’t expire, as long as they’re in use. They can absolutely still protect the mouse as a brand identifier. And you might have noticed that in recent years, Steamboat Willie has become more recognizable again. For example, Disney has been using a clip from the film as new intro logo for Disney animation. Now, courts in the U.S. have warned in the past about trying to use trademark as a sort of mutant copyright law. But how this is going to play out… could potentially be very interesting. I personally hope to see Mickey Mouse firmly in the public domain and built upon by others. But this is very likely not the end. In the meantime, enjoy this copy of Steamboat Willie, which I am now legally allowed to share with you.

Video link: https://youtu.be/lnGL55VOj_4