After years of speculation as to when and how the copyright in Mickey Mouse might finally expire, including even legislative action by Congress to extend the term of copyrights for U.S. works, the copyright in Walt Disney’s short animated film “Steamboat Willie,” which first introduced the character of Mickey Mouse to the world, finally expired at the end of 2023.  As a result, that animated short fell into the public domain on January 1, 2024.

Much has been written about that legal event, both in anticipation of it happening, and immediately after it occurred.  But despite speculation in some quarters that Disney would suffer adverse consequences from its signature character’s becoming available for copying by anyone in the world, the “sky has not fallen” since January 1 this year.  And it shows few signs of doing so any time soon.  There will almost certainly be a greater impact over the longer term, as all copyright protection for Mickey Mouse must eventually expire.  But the end of Disney’s legal monopoly on its most famous character is far from nigh.  The reasons are easy to summarize.

First, as The Walt Disney Company has been at pains to point out, the appearance and even the demeanor of the Mickey Mouse character evolved significantly since the character first appeared in “Steamboat Willie.” Although that animated short is now in the public domain, all later works featuring Mickey Mouse and the versions of his character in them have not yet fallen into the public domain.  As a result, only the first animated short itself may be freely reproduced.  And the commercial effect of that fact is minimal.  As long ago as August 2009, over fourteen years ago, Walt Disney Animation itself loaded the entirety of “Steamboat Willie” onto YouTube for viewing for free by internet users everywhere.  It has attracted nearly 14 million views there to date, but today, its appeal seems mostly historic.

Second, The Walt Disney Company continues to commercialize Mickey Mouse in many ways using subsequent versions of the character.  Reproduction of those revised versions continues to be proscribed by law.  An early case concerning use of copyrighted characters whose earliest versions had fallen into the public domain is Silverman v. CBS Inc., 632 F. Supp. 1344 (S.D.N.Y. 1986), in which this firm and my law partner David Rabinowitz in particular represented CBS.  The case concerned CBS’s continuing rights in the radio scripts, television programs, and other material associated with the characters Amos and Andy, who first appeared on radio in 1928, but were revived in various different forms starting in 1948 and continuing into the 1950s, including in visual form in later television productions.  Relying on the continuing copyright protections in those later modifications to the characters, Judge Goettel granted CBS’s motion for summary judgment in its favor on most of its claims.  In particular, the court ruled against a Broadway producer who had planned to present a theatrical version of the characters without CBS’s consent, relying on the public domain nature of the earlier iterations of the characters.  The court ruled that a script the producer planned to use infringed on CBS’ rights in later versions of the Amos and Andy radio show, which were still protected by copyright.  And the court also ruled that the physical appearance of the characters in the later television shows was still protectible, notwithstanding the public domain status of the characters as portrayed in the earlier radio shows. Use of any of the new elements would be infringing, but would depend on exactly how the characters were depicted on stage.  The case is a useful and early case of first impression as to how courts go about disentangling public domain characters from subsequent copyright protections.

Third, The Walt Disney Company has also secured federal registered trademark rights in the appearance of Mickey Mouse as he appeared in “Steamboat Willie.”  In the late 1990s, the company created and used a video “logo” to introduce and identify some of its audio-visual productions that consisted of a few seconds of the Mickey Mouse character taken from that animated short.  As a result, the trademark rights in the appearance of that original character persist, and will continue to do so for as long as the mark continues to be used, which could be indefinitely.  Indeed, in Silverman v. CBS, the court ruled that unless CBS had abandoned its trademark rights, CBS could maintain its legal monopoly in even the elements of the characters in issue that had fallen into the public domain. 

Questions may persist.  Non-trademark use of the public domain version of the Mickey Mouse character is undoubtedly now legal.  As a result, those wishing to make use of the original version of Mickey Mouse as shown in “Steamboat Willie” no longer have to argue that they are entitled to make some form of parodic or other “fair use” of a copyrighted character.  That argument famously did not work for the renegade artists claiming parody in Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978).  In that case, the 9^th Circuit ruled that a series of underground comic books’ portrayals of “a rather bawdy depiction of the Disney characters as active members of a free thinking, promiscuous, drug ingesting counterculture” was not protected by fair use or the First Amendment. 

The Walt Disney Company may no longer be able to rely on simple and broad copyright protections in such uses today.  And there’s always the risk of adverse publicity if and when it takes legal action against others’ expressive works.  But like CBS in its case described above, Disney still has many alternative theories on which it may rely to preserve the image and use of its most famous character.