Weekly take: Can Disney prevent a Mickey Mouse copyright horror show?
Niall Trainor, managing attorney for IP at games company Hasbro, asks whether the duration of copyright protection is still fit for purpose in the 21st century
Copyright law enthusiasts eagerly await the turn of the new year more than most.
That’s not because they enjoy making resolutions or embarking on some overly ambitious January health regime.
Instead, it is because every year on January 1, creative works that had previously been protected for many decades by copyright law finally lapse and enter the public domain.
This year was particularly significant, as the original Mickey and Minnie Mouse animation ‘Steamboat Willie’, the intellectual property of The Walt Disney Company for 95 years, finally entered the public domain in the US.
For Disney, this day had been a long time coming.
The movie was originally set to enter the public domain in 1984. However, Disney managed to get an extension in 1978 which pushed that date forward to 2004.
In 1998, it was delayed further until 2024 by the Copyright Term Extension Act (now commonly dubbed the ‘Mickey Mouse Protection Act’).
People have wasted no time in taking advantage of the lapse in copyright protection. A trailer for a slasher film, featuring a masked killer dressed as Mickey Mouse, was released on January 1.
A new Mickey-inspired horror game, showing the famous children’s character covered with blood stains, was also released the same day.
My feeling is that Disney was incredibly lucky to have owned the copyright for such a long time. The repeated extensions of copyright law had real-world consequences, as it extended the protection for many other copyrighted works as well.
This meant that for many years live productions of well-known plays, music concerts, and film showings could not happen in the US due to the prohibitive cost of putting them on. The public interest argument on this alone surely outweighs Disney’s desire to protect just one of its many brands.
As mentioned, the lapsing of copyright in works happens every year, so in a sense, this is nothing new.
In 2024 alone, works relating to Tarzan and Winnie the Pooh entered the public domain, as well as literary titles by D.H Lawrence, Virginia Woolf, Agatha Christie, and notably Erich Maria Remarque’s novel ‘All Quiet on the Western Front’, alongside movies involving Laurel and Hardy, Charlie Chaplin and Alfred Hitchcock.
However, given Mickey Mouse is one of the most famous entertainment brands ever, and is still owned and heavily exploited by Disney, this feels like a more seminal moment than previous years. The passage of time is finally catching up with these iconic brands.
Patchwork of laws
It is worth reminding ourselves that copyright law is subject to a variety of international laws and conventions, as well as individual national laws.
Suffice it to say, it can be fiendishly complex and any discussion on it is inevitably full of caveats and exceptions. This entire piece should come with an asterisk!
There are however some things we can be sure of.
First, the issue of copyright is centuries old. The works of many famous composers, playwrights, authors, and artists from the 19th century and earlier have long been in the public domain.
That said, even this is complicated by how that copyrighted work is later used – in sound recordings, films, or revisions of the original work for example.
But, in theory at least, the original published work, after a passage of time, is no longer afforded copyright protection and enters the public domain.
When exactly this happens varies depending on the country and the type of copyrighted work. As a rule of thumb though, most copyrighted works are afforded protection for at least 50 years after their creation or publication.
For owners of historical copyrighted works nearing expiry, what is the practical impact on them?
One option is to update their works so that they are sufficiently distinct and original to create new copyrighted works.
Disney has consistently updated the artwork and branding of Mickey and Minnie Mouse to ensure they can continue to exploit them commercially (and crucially, prevent others from doing so).
Second, ensuring that copyright works are registered and maintained at the US Copyright Office is another essential step to maximise protection.
Third, trademark registrations are becoming increasingly important to plug any gaps in a work’s copyright protection.
Disney has several hundred trademark registrations globally related to Mickey Mouse alone.
One of my own company’s famous brands, the board game Monopoly, has been around in some form for more than 100 years, and relies heavily on trademark rights in part for this reason.
The first half of the 20th century saw the introduction of recorded music and movies, as well as an incredible burst of creativity in the literary and artistic sectors.
Therefore, the number of famous works entering the public domain is only going to increase exponentially.
Given the advances of society, technology and culture, is it still appropriate to stifle creativity for such a long time after the work was created? The time may have come for a re-think on whether the duration of copyright protection is still fit for purpose in the 21st century.
However Disney wishes to spin it, from an optics perspective at the very least, this is undoubtedly a dilution of sorts in their rights over a tentpole IP.
Further, it could become a headache from a brand reputational standpoint.
A serial killer Mickey Mouse movie and horror game is obviously not on brand with such a wholesome, household name, one which Disney has carefully curated and protected for almost a century.
Being the copyright owner of a similarly ubiquitous children’s cartoon brand, Peppa Pig, trying to prevent inappropriate use of Hasbro’s IP is a huge challenge despite us owning all the copyright.
For Disney, their challenge is now even greater – to somehow strike a balance between allowing the use of Mickey Mouse that is now in the public domain, all the while monitoring that same use to ensure it does not unduly damage the brand, or otherwise stray too close to later iterations of Mickey Mouse which are still protected by copyright.
It remains to be seen if this becomes an increasingly common issue, particularly with recent advancements in artificial intelligence and the possibilities that it brings for reinventing original copyrighted works.
On a final note, and an important one at that, the duration of copyright protection is often dependent on how much time has passed since the death of the original work’s author.
This quirk of copyright law can create all sorts of anomalies whereby contemporaries of the same era can have vastly different copyright protection positions.
Take two of the leading literary figures of the 20th century, George Orwell and Samuel Beckett. Both were born around the same time, Beckett managed to live almost 40 years longer than Orwell.
Orwell died more than 70 years ago, so technically his original works no longer have copyright protection in the UK. However, Beckett’s death in 1989 means that his works still have decades before they enter the public domain here.
The practical impact of this?
In theory, at least, a ‘1984’-themed reality TV show could be commissioned today without seeking the consent of Orwell’s estate.
Arguably, this has already happened with the concept for the hugely successful TV franchise ‘Big Brother’ being based on Orwell’s famous book. The Beckett estate, notoriously protective of how his works are performed and used, would never countenance such a thing.
Alas, due to copyright law, those hoping for a Beckett-themed reality TV show may end up having to wait as long as Vladimir and Estragon were waiting for Godot.