Steamboat Willie and the Impact of Trademarks on Public Domain Film

On January 1, 2019, for the first time in over 20 years, works published in the United States will fall into the public domain due to copyright term expiration.  After the passage of the 1998 Copyright Term Extension Act (CTEA), copyright on works published before January 1, 1978 was granted a 20-year extension, increasing the term of copyright from 75 to 95 years.  Though all works published in the United States prior to December 31, 1922 were already in the public domain, those scheduled to be admitted on January 1, 1999 (i.e., all U.S. works published in 1923) were to remain bound by copyright protections for another 20 years.
            The CTEA generated controversy during its development, as major media conglomerates, most memorably The Walt Disney Company, had been lobbying for nearly a decade to extend copyright protections.  As a result, the CTEA was derisively referred to as the “Mickey Mouse Protection Act” by opponents of the legislation.  Indeed, a major motivation for Disney’s intervention was to extend protections for its earliest cartoons.  A particularly defining moment in the company’s history was the release of Steamboat Willie, a short cartoon with synchronized sound which introduced one of the most well-known popular culture icons of modern times, Mickey Mouse.  Notably, the CTEA represented the third extension of copyright of Steamboat Willie since its publication in 1928, a term which was originally set to expire in 1956.
            Trademarks stemming directly from early films are rarities.  By and large, the nascent 1920s film industry had yet to capitalize on the potential for extensive marketing campaigns.  Films in this era were often viewed as one-off experiences likened to symphonies or plays, though with less artistic standing.  Mickey Mouse stands as perhaps the most notable anomaly, a character that became a trademarked symbol of one of the largest mass media organizations on the planet.  It is precisely as a trademarked symbol under which Mickey Mouse will retain extensive legal protection.
            As a result, marketing of footage of Mickey Mouse, even footage which may have unambiguously passed into the public domain, may not be so straightforward.  Perhaps an enterprising person, looking to capitalize or build upon Disney’s intellectual property, will be able to produce a DVD of Steamboat Willie – but can they feature Mickey Mouse on its cover?  Even as a still from the film?  It is highly likely that any attempt to do so would result in litigation.  Disney is notoriously protective of intellectual property.  In one of the most highly publicized cases, in 1989, Disney threatened legal action against daycare centers which had painted Mickey Mouse on their walls.
            Any precedent that may result as a consequence of similar legal action will not be decided upon for some time, as Steamboat Willie is not set to enter the public domain for another five years.  Yet the case of Mickey Mouse is only one legal issue among many which may arise from the reopening of the public domain.  As such, the complex interplay of creators and the market in which they commoditize their creations is sure to fall under renewed scrutiny.

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