Mickey Mouse and Batman will soon be public domain—here’s what that means

By Timothy B. Lee

The copyright to <i>The Great Gatsby</i>—the 1925 novel, not the 2013 movie starring Leonardo di Caprio—will expire two years from today.
Enlarge / The copyright to The Great Gatsby—the 1925 novel, not the 2013 movie starring Leonardo di Caprio—will expire two years from today.

As the ball dropped over Times Square last night, all copyrighted works published in 1923 fell into the public domain (with a few exceptions). Everyone now has the right to republish them or adapt them for use in new works.

It's the first time this has happened in 21 years.

Until the 1970s, copyright expirations were an annual occurrence. On January 1, 1977, works published in 1921 became free for anyone to use. But then an overhaul of copyright law—passed in 1976 but not taking effect until 1978—extended copyright protections by 20 years. As a result, the copyrights for 1922 works expired in 1998 instead of 1978.

Then Congress passed the infamous Sonny Bono Copyright Term Extension Act later in 1998. It added another 20 years to the terms of older works, keeping 1923 works locked up until 2019 instead of 1999.

Many people—including me—expected another fight over copyright extension in 2018. But it never happened. Congress left the existing law in place, and so those 1923 copyrights expired on schedule this morning.

And assuming Congress doesn't interfere, more works will fall into the public domain each January from now on.

Next January, George Gershwin's Rhapsody in Blue will fall into the public domain. It will be followed by The Great Gatsby in January 2021 and Ernest Hemingway's The Sun Also Rises in January 2022.

On January 1, 2024, we'll see the expiration of the copyright for Steamboat Willie—and with it Disney's claim to the film's star, Mickey Mouse. The copyrights to Superman, Batman, Disney's Snow White, and early Looney Tunes characters will all fall into the public domain between 2031 and 2035.

The expiration of copyrights for characters like Mickey Mouse and Batman will raise tricky new legal questions. After 2024, Disney won't have any copyright protection for Mickey's original incarnation. But Disney will still own copyrights for later incarnations of the character—and it will also own Mickey-related trademarks.

James Grimmelmann, a copyright scholar at Cornell Law School, tells Ars that this is an uncharted area of law because licensing practices for modern characters are "so much more intensive and so much more comprehensive now" than in the 1920s and 1930s. "We never had megacharacters in the same way" prior to the 1920s, he says.

Internet activism made another extension untenable

Sonny Bono (right) in 1965. Bono was elected to Congress and then died in 1998. His colleagues in Congress dedicated the 1998 copyright extension legislation to his memory.
Enlarge / Sonny Bono (right) in 1965. Bono was elected to Congress and then died in 1998. His colleagues in Congress dedicated the 1998 copyright extension legislation to his memory.

Dennis Karjala was a law professor who helped lead the doomed resistance to the 1998 extension. He passed away in 2017, but when I interviewed him in 2013, he told me that it was "basically the Gershwin family trust, grandchildren of Oscar Hammerstein, Disney, others of that ilk" who pushed for ever-longer copyright terms.

Most copyrighted works become commercially worthless within a decade or two. But a small minority of famous works from the 1920s and 1930s were still generating significant revenues in the 1990s. Retroactively extending copyright terms meant an enormous windfall for the companies and families that owned the copyrights.

"There was not a single argument that actually can stand up to any kind of reasonable analysis," Karjala said. But the public domain had few defenders. So even though the arguments for longer copyright terms weren't very strong, they won the day in Congress.

Until recently, I assumed that the same interest groups would try to extend copyright terms again in 2018. But the political climate for copyright legislation has changed radically over the last 20 years.

A year ago, Ars Technica broke the news that three of the nation's most powerful rights holder groups in the country, the Motion Picture Association of America, the Recording Industry Association of America, and the Authors Guild, were not even going to try to pass legislation extending copyrights.

"It's not something we are pursuing," an RIAA spokesman told me.

The reason was simple, Grimmelmann argues: they knew they weren't going to win.

"There's now a well-organized, grassroots lobby against copyright expansion," Grimmelmann tells Ars. There are large business interests now on the anti-expansion side. Also a wide popular movement that they can tie it into."

The rise of the Internet and its remix culture means that a lot of people now benefit from a growing public domain in ways that wasn't true in 1976 or 1998. That includes big companies like Google but it also includes grassroots communities like Wikipedia editors and Reddit users. This emerging copyright reform coalition flexed its lobbying muscles in 2012 when it overwhelmingly defeated an Internet filtering bill called the Stop Online Piracy Act.

So if the usual suspects had pushed for another copyright extension, they would have had a serious fight on their hands. Digital rights groups, online activists, and lobbyists from big technology companies would have swarmed Capitol Hill making the case against copyright extension. Evidently, major rights holders didn't have the stomach for another battle like that.

Of course, it's possible they could make another effort in the future. Remember, Congress allowed one year's worth of copyrighted works to expire in January 1998 before passing a term extension that year.

But there's reason to think that this time is different. Today's opponents of copyright extensions are vastly better organized and better funded than the ragtag band that tried to stop the 1998 copyright extension.

Using public-domain characters could be a legal minefield

Batman's creation is announced in a 1937 edition of Action Comics.
Batman's creation is announced in a 1937 edition of Action Comics.

A company like Disney enjoys several layers of legal protection for a major character like Mickey Mouse. It owns the copyright to the original character. It owns the copyrights to subsequent versions of the character, which tend to be better known to modern audiences. And they also own trademark rights.

The copyright for the original version of Mickey Mouse is scheduled to expire on January 1, 2024. But the other rights associated with Mickey Mouse will remain in place for longer.

Suppose, for example, that you wanted to create a new Mickey Mouse toy without authorization from Disney. You'll be free to do that in 2024, but only if your Mickey Mouse looks like this:

The Mickey Mouse character has evolved over the decades, Grimmelmann points out. And "modern Mickey is still protected," he says.

The most obvious example here is Mickey's white gloves. He didn't wear them in Steamboat Willie. So if you wanted to sell a Mickey toy with white gloves, you'd probably need to wait until 2025, when the copyright for the first Mickey short with white gloves, The Opry House, is scheduled to expire.

The early Mickey Mouse cartoons were black and white, so if you wanted to make a Mickey Mouse toy with modern colors, you'd have to carefully research when those colors first appeared.

Later changes to Mickey's appearance have been more subtle. But they may still be legally significant.

"I would expect Disney to be very careful to document similarities between the toys and any elements of Mickey still under copyright," Grimmelmann tells us. "It would be very easy to slip into more iconic Mickey toys without realizing it."

This is a line that third parties are already walking for the Sherlock Holmes series, which was published between 1887 and 1927. Most of the books are in the public domain, but the last few volumes are still under copyright. A few years ago, the estate of Arthur Conan Doyle tried to stop publication of a book based on the Sherlock Holmes character, arguing that the full complexity of the Holmes character wasn't revealed until later in the series. The Seventh Circuit appeals court rejected this argument, finding that people were free to create new Sherlock Holmes books as long as they didn't use elements of the Holmes canon that were introduced in books that were still under copyright.

The same legal issues will arise when other iconic characters—Batman, Superman, Bugs Bunny, Daffy Duck, Winnie the Pooh, and so forth—fall into the public domain over the next 20 years. In a few years, it'll be legal to create new creative works based on these characters, and possibly even to sell toys and other merchandise without authorization from the copyright holders.

But the original rightsholders will be looking over their shoulders. Anyone will be able to make new Batman cartoons after 2035, but they'll have to be careful to only use elements from Batman's original incarnation. Story lines, characters, and other elements that were released in later years will still be under copyright, and so people will have to wait for those later editions of the series to expire before those elements will be free for anyone to use.

Trademark law adds an extra wrinkle

Disney holds both copyright and trademark protections for the Mickey Mouse character. Copyright protection expires; trademark doesn't. So even after all significant Mickey Mouse copyrights have expired. Disney could potentially use trademark law as a weapon against unauthorized Mickey Mouse products.

Grimmelmann calls this a "messy area for IP law." The big question for trademark law is whether consumers are confused about the origin of the product—in this case, whether they believe a product is official Disney merchandise. That might be an easier case for Disney to win if someone used Mickey's image to market an unrelated product like toothpaste.

But a company selling a Mickey Mouse toy or a new movie featuring Mickey Mouse would likely be on firmer legal ground, Grimmelmann argues. He points to a 2003 case where a company called Dastar republished portions of a television documentary based on a Dwight Eisenhower book. The copyright for the documentary had not been renewed, putting it into the public domain. Dastar edited it to strip out the original credits and present it as a Dastar production.

Twentieth Century Fox, which had owned the television rights before they expired, sued Dastar arguing that Dastar had violated trademark law by passing off Fox's work as is own. But the Supreme Court rejected that argument, noting that allowing the use of trademark law to restrict the republication of creative works would create "a species of mutant copyright law" that limits copying of public domain works.

"We have been careful to caution against misuse or overextension of trademark and related protections into areas traditionally occupied by patent or copyright," the high court wrote.

Grimmelmann argues that similar reasoning would prelude Disney from using its trademarks to restrict creative reuse of Mickey Mouse. "The broader principle the decision stands for is you can't use trademark law to control the distribution of a copyrighted work," he tells Ars.

Still, some amount of litigation is inevitable.

"Disney could be quite vigilant about watching out for cartoons that give the impression that they're affiliated with Disney," Grimmelmann says.

Correction: I originally said that all works from 1923 are now in the public domain, but there are a few exceptions. The Music Modernization Act, passed earlier this year, gave a few years of added protection to early sound recordings. And works whose pre-1924 publication was not authorized by the author might still be under copyright if the first authorized publication occurred in 1924 or later.