from the public-domain-food-fight dept
Look, we all knew that there was going to be a lot of fuss about the upcoming public domaining (finally!) of Mickey Mouse nine months from now on January 1, 2024. I mean, we’ve already been talking about what next year’s public domain game jam is going to look like with Mickey as one of the options.
If you somehow have been living under a rock and never read anything on Techdirt before, let’s get you up to speed. Mickey Mouse debuted as Steamboat Willie in 1928. The character was a blatant animated copy of Steamboat Bill, a Buster Keaton silent film that came out… the same year. Disney, of course, also built up much of its success by taking public domain stories and animating them.
But, of course, once Disney became the Walt Disney Corporation, it chose to lock up everything it could. Disney has been absolutely famous for its aggressive copyright lawyering for years, which included what we’ve referred to as the Mickey Mouse curve: every time Mickey Mouse started to get near the public domain, a purely coincidental thing happened where Congress would (totally unrelatedly) extend copyrights:
The last extension, the 1998 Sonny Bono Copyright Term Extension Act was quite frequently referred to as the Mickey Mouse Protection Act.
Over the last few years there remained concerns that Disney would try to extend copyrights once again, but I think once the public rose up against SOPA in 2012, Disney and most of the rest of the copyright legacy players realized that there was no chance they were going to extend terms again. Hell, even Maria Pallante, one of the more extreme copyright maximalists (currently trying to kill libraries) while she was head of the Copyright Office, suggested that maybe it was time to cut back on copyright terms, rather than extend them.
And so, everyone has more or less accepted as fact that the Steamboat Willie version of Mickey becomes public domain next year. Even leaving aside the weird series of articles that showed up in the middle of last summer whining about how awful it is that Disney will “lose” Mickey, there are still some concerns about Disney lawyer fuckery on the way.
Again, many of you know this already, but just to be clear: the only thing that’s going into the public domain is the 1928 version of Mickey, which you can see here:
It’s not quite the iconic version of Mickey from today, though it’s not that far off. But, Disney will still hold the trademark on Mickey, which could limit how it’s used in commerce (in theory, it should only limit uses where someone is confusing people into believing their Mickey-related product is from or endorsed by Disney, but theory doesn’t always match reality when these things go to court).
But, as we discussed earlier this month, Disney has already been quietly making some moves that suggest it’s going to try to use trademark law as ridiculously as it can:
In 2007, Walt Disney Animation Studios redesigned its logo to incorporate the “Steamboat Willie” mouse. It has appeared before every movie the unit has released since, including “Frozen” and “Encanto,” deepening the old character’s association with the company. (The logo is also protected by a trademark.) In addition, Disney sells “Steamboat Willie” merchandise, including socks, backpacks, mugs, stickers, shirts and collectibles.
Either way, we expected that there’d be some legal shenanigans worth paying attention to next year. I also thought that maybe some people or small companies without good lawyers might accidentally jump the gun a bit and do something in December.
But… what I did not expect was that John Oliver and the folks at Last Week Tonight, an HBO show currently owned by cost-cutting Warner Bros. Discovery would say “fuck it” and start using Mickey Mouse… now.
I mean, I shouldn’t be surprised. Half the time I think Oliver’s show is basically Techdirt-but-if-funny,-entertaining,-and-clever, with the way he seems to cover the same topics we’re always covering, but, you know, better (mostly). And, Oliver has become somewhat famous for poking the eye of his own corporate masters (quite gleefully).
It absolutely would not have taken me by surprise if Oliver had done this nine months from now once Mickey is officially in the public domain. But… jumping the gun like this? That still surprised me.
The bit is, as you’d expect, hilarious. It starts with a discussion of the horror film, Winnie the Pooh: Blood and Honey, which, as you know, is building on a work that entered the public domain last year. But then moves on to Mickey. He talks about Mickey going into the public domain next year, highlights the litigiousness of Disney over Mickey (including legal crackdowns on a gravestone and a daycare center using images of Mickey) before noting he’s not going to wait to use it himself.
On top of which Disney has registered trademarks related to Disney, which don’t expire. In fact, some have speculated that might be why Disney redesigned its animation studios opening logo to incorporate the Steamboat Willie Mickey Mouse.
And it does feel like a tactical legal move. Basically, they may argue that this early Mickey image is so closely associated with their company, that people will automatically assume that any image of him was produced or authorized by them, and still take legal action.
So the fact is, anyone wanting to use the Steamboat Willie Mickey Mouse, will probably still be taking a risk.
But… if you know anything about this show by now… you know, we do like to take a risk every now and then. And there’s a lot to be said for beating the rush to capitalize on Mickey that will be starting next year.
So, tonight, I’d like to preview for you, our brand new character on this show, Mickey Mouse
He introduces some new, um, catch phrases for Mickey including “where’s Shelly Miscavige?” (a running… sorta… joke on the show about the missing wife of Scientology leader David Miscavige), “Jeffrey Epstein didn’t kill himself,” and “I hope Henry Kissinger dies soon!”
As Oliver says:
You know, the nice thing about characters entering the public domain is that you can do new, interesting things with them.
This is true. It’s why we celebrate the public domain every chance we can (psst, have you checked out the entries in this year’s public domain game jam?)
Mickey then asks John about the fact that he’s not actually in the public domain yet, and John doesn’t seem too concerned:
Mickey Mouse: I thought I wasn’t public domain until next year!
John Oliver: That’s actually true, buddy, we are pushing the limit a bit here. Actually, come to think of it, is your voice public domain yet?
Mickey: I guess you’ll find out!
John: Yeah! I guess we will!
He then decides to provoke Disney even more.
And I know, Disney’s lawyers might take the trademark angle and argue that this Mickey is closely associated with their brand. Although they should know that he’s pretty closely associated with our brand now too. And not just because I have a general vibe that screams 95-year-old rat-faced idiot, but also, because the Steamboat Willie Mickey has actually been in our opening credits since the first show of this season…
And then… even more.
And I don’t doubt that Disney has some other legal arguments up their sleeve, but we’re only likely to find out what they are if, and when, then sue. So, you know what? Let’s take this up a notch. Come say ‘hi’ Mickey!
And… out comes a Steamboat Willie Mickey in a costume to say his catch phrases to Oliver:
And, from there, he promises that as of January 1st, this costume will be available for all sorts of events (“birthday parties, theme park openings, funerals, sex dungeons, whatever you want.”)
So… now the question… does Disney actually do anything? Do they call up Warner Bros. Discovery and say WTF? Or do they send in the lawyers? I guess we’ll find out!
Oh, and John, if they do send in the lawyers, your own lawyers might want to look more deeply into reports that turned up 15 years ago that Disney’s lawyers, way back in the early days, fucked up the registration and don’t actually hold any copyright on Mickey Mouse at all. That’ll be fun.