Published January 14th, 2021 at 6:00 AM6 minute read
Some events are so bizarre and unique that it makes one consider the role of fate. Every once in a while, the stars align to create a moment so significant that it can alter the state of the world more than a century later.
That is what happened when Walt Disney met a very special mouse at the Laugh-O-Gram studio at the corner of Forest Avenue and 31st Street in the early 1920s.
Legend has it that aspiring animator Disney could no longer afford to live in his apartment, so he slept at the studio. In the middle of the night, he would hear mice scrounging through the wastebaskets, nibbling on whatever was left of lunch from the day before. Eventually, Disney began to put food out to lure the mice out night after night.
One mouse was braver than the rest, according to Walt. That mouse eventually became his pet, and upgraded from living in the walls to a penthouse cage suite in Disney’s desk drawer. When Walt left Kansas City for Hollywood in August 1923, he let the mouse loose somewhere he thought it would have a chance at survival.
According to several interviews in the 1930s, that mouse was the inspiration for the character who is now synonymous with the global entertainment giant today: Mickey Mouse.
The original version of the mouse that built Disney’s house could become the mouse of the people in 2024 by entering the public domain, where he would join famous characters like Dracula, Robin Hood, King Kong and Sherlock Holmes. This means anyone can use the original Steamboat Willie version of the character without catching a copyright claim from Disney.
The migration of valuable intellectual property into the public domain is no small thing. Just this year, F. Scott Fitzgerald’s “The Great Gatsby” entered the public domain, and already the internet is begging for a Muppets version of the story.
But how does an iconic character created in 1928 stay out of the public hands for nearly a century? And are we sure it will be available for all in 2024? To answer a question of the future, one must first look to the past.
The original Copyright Act of 1790 provided creators 14 years of copyright protection, and one renewal of an additional 14 years if the author was still alive. The act was updated in 1831 to extend the initial protection to 28 years, and kept the 14-year renewal option. In 1909, that 14-year renewal became a 28-year renewal on top of the initial 28 years of copyright protection.
This all changed in 1976, when Congress completely changed the Copyright Act to extend Disney’s protection on some of its properties. The new Copyright Act allowed creators to have protection for their entire life, plus 50 years. The maximum term for already published works was changed from 56 years to 75 years, which then put Mickey Mouse out of the grasp of the public domain until 2003.
In 1998, with just five years until they lost Mickey to the public, Disney lobbied Congress to extend protections, in an attempt to keep the mouse in-house. That year, Congress passed the Sonny Bono Copyright Term Extension Act of 1998. The legislation extended copyrights for works created on or after Jan. 1, 1978 to the life of the creator plus 70 years. It also extended corporate works to 95 years after the first publication, or 120 years from creation, whichever came first.
That pushed Mickey’s public domain release until 2024, where it currently stands.
To date, the company has remained mum about the prospect of the Steamboat Willie version of Mickey slipping into the public domain.
Some thought that Disney would push to get the rights extended again, but according to Andrew W. Torrance, the Paul E. Wilson Distinguished Professor of Law at the University of Kansas School of Law, that hasn’t been the case.
“Many people assumed that, because Mickey Mouse’s incarnation in the film ‘Steamboat Willie’ was approaching expiration, Disney and its allies might push for an additional 20 years of copyright protection,” Torrance said. “However, that has not happened. In fact, at the moment it appears that the motion picture, recorded music, and publishing industries lack enthusiasm for further copyright term extension.”
It doesn’t help their case that Congress currently has bigger fish to fry.
“Congress is currently preoccupied with myriad issues it considers far more important and pressing than copyright term extension,” Torrance said. “In the middle of the COVID-19 pandemic and a worldwide economic crisis, the last thing on most politicians’ minds is how to get more copyright protection for Mickey Mouse. As a consequence, I think it’s unlikely we will see any proposals to change the copyright law in any substantial way for the foreseeable future.”
Even without extending their copyright protection on the character, there are still ways Disney can protect Mickey from intellectual property poachers.
In fact, Disney will still have trademark protection on the character, as that doesn’t expire as long as a property is in the public consciousness. A trademark’s purpose is to indicate to the public where a product came from. With Mickey, there could be some gray area when it comes to violating trademark law.
For example, if someone were to make a Mickey Mouse doll, there may be some customer confusion as to whether the product is from Disney, or another creator who has access to the character through the public domain. According to Torrance, consumer confusion is the standard in trademark law, and could be a tool Disney uses to protect its character.
Trademark isn’t the only legal gray area that new creators will have to consider.
With a character as long-lasting as Mickey, changes are bound to happen. That means that only the original Steamboat Willie version of the character will enter the public domain. That character is missing some of the iconic characteristics associated with Mickey today. The mouse’s white gloves, and any iterations that include any kind of color, will not be a part of the version entering the public domain. So if new creators want to repurpose the character, they will have to work around the restrictions that come with it.
Expect these legal questions to bring about court cases that could set new precedent in the trademark and copyright field of law. Torrance expects companies to “fight tooth and nail” to protect their most valuable properties.
“For most companies, intellectual property is making up an increasing share of their market value,” Torrance said. “This is especially true for companies in creative industries, where intellectual property has long been a dominant component of company worth. In the film, music, and publishing industries, intellectual property is king.”
Some Disney fans would actually prefer Mickey stay within Disney’s grasp.
Dan Viets, president of Thank You Walt Disney, Inc., a nonprofit committed to preserving Disney’s history in Kansas City, as well as restoring the building that housed Laugh-O-Gram studios, is not so sure that the character should enter the public domain anyways.
“People will take those characters and use them in unbecoming ways,” Viets said. “That’s the temptation, and you know if anybody can use those characters, they are going to be abused and they’re going to be used in ways that they shouldn’t be.”
If Mickey were to return to the public domain, Missouri would be gaining access to one of the state’s most famous native’s premier creations.
Disney moved to Marceline, Missouri, from Chicago with his family in 1906. It is Marceline where Disney said he found the magic of his life.
Kaye Malins, the director of the Walt Disney Hometown Museum, said that Disney’s daughter told her that she thought her father had lived in Marceline his whole life because of how much he spoke about the town.
When Disneyland opened its doors for the first time in 1955, guests entered through Main Street, which was inspired by Marceline’s Kansas Avenue. Malins met Disney for the first time when she was 8 years old, and knew the man for the last 10 years of his life before he died in 1966.
“He had a very special way of asking a question and making me feel like my answer really mattered,” Malins said.
He helped her get a job working at Disneyland one summer while she was in college. Malins has a deep tie to the man who made the mouse, but doesn’t really see Mickey entering the public domain affecting her, the town or the museum.
“We in Marceline care more about telling the story of the man than the mouse,” Malins said.
Disney moved to Kansas City in 1911, where he and his brother, Roy, started to put into practice their love for drawing. Walt said in a letter to the Kansas City Public Library that it was there where he checked out the first book he had read on animation, E. G. Lutz’s, “Animated Cartoons: How They are Made, Their Origin and Development.”
After Walt went bankrupt in 1923, he packed his bags for a one way trip to Los Angeles, where he would become the entertainment mogul we remember him as today.
“It is hard to overstate the importance of Walt Disney,” Viets said.
Jacob Douglas covers rural affairs for Kansas City PBS in cooperation with Report for America.