Mickey Mouse, the Founding Fathers and Copyright Law

On January 1, 2024, the world’s favorite mouse will enter the public domain. The Walt Disney Company, one of the most formidable challengers to copyright law, has fought since 1976 to keep “Steamboat Willie,” the first Mickey Mouse animation, from the hands of other artists and creators.

Disney inarguably has good reason to want to protect their foundational animated character. His likeness and name have become indistinguishable from Disney’s brand. Given that the brand’s value alone stood at more than $57 billion in 2022, protecting its integrity is central to the company’s financial interests. That protection will become more challenging to enforce than ever in the hands of free-wheeling artists and businesses.

It’s unclear whether Disney will try to extend these copyright terms again come 2024, but the juggernaut certainly changed the game for intellectual property rights.

Where Did Our Intellectual Property Rights Begin?

I bet you didn’t know the United States Constitution has a copyright clause.

Yes, nestled between the now-famous Emoluments Clause and the rights bestowed on United States citizens, our founders contemplated the promotion of “useful arts and sciences.” Arts signified authors and their written works (copyright), and the “sciences” signified inventors and their discoveries (patents).

But what precisely does the clause mean? What powers does it allow and/or limit?

Article I, Section 8, Clause 8 of the United States Constitution grants Congress the power “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Like most things, the Copyright Clause isn’t as straightforward as we’d like. Experts often refer to this clause as the patent and copyright clause because “science and useful arts” refer only to patented and copyrighted creations.

Our Founding Fathers did not include trademarks or trade secrets within the Copyright Clause. Those areas of intellectual property grew and developed independently. Trademarks, for instance, involve the mark “in commerce,” so they fall under the purview of the Commerce Clause. This explains why patents and copyrights have time limits, which are unique among intellectual property tools.

What Does the Copyright Clause Do?

The Copyright Clause of the Constitution provides the United States Congress with the authority to grant authors and inventors exclusive rights to their creative works of art and inventions. However, the goals of patents and copyrights differ slightly, so the term limits differ, too.

Let’s take a look at the evolution of copyright law from 1790 to the current day.

Patent Limits

Congress enacted the 1790 Patent Act to grant limited rights to inventors. That act and subsequent changes are codified in Title 35 of the United States Code.

Lawmakers designed those rules to encourage inventors to disclose their new technology to the world. New inventors would receive an incentive through a limited-time monopoly.

Currently, a limited-time monopoly means 20 years from the filing date (the date the inventor or her attorney files the patent application). Of course, since “limited-time monopoly” is a relatively vague term, the actual life of a patent has changed since the 1790 Patent Act.

Initially, patent terms were left to the Patent Board to determine. This consisted of the Secretary of State, the Secretary of War, and the Attorney General. However, monopoly grants could not exceed 14 years. Over the years, lawmakers amended the structure of the Patent Act to foster greater uniformity.

America Invents Act of 2012

The most recent change to the United States Patent laws came in 2012 with the passage of the America Invents Act (AIA). The AIA did not change the length of a patent, but it did make several other significant changes to the framework of patent law.

Once the 20-year patent protection period ends, the invention enters the “public domain.” This allows anyone to use inventions previously protected by patents. Our Founders believed populating the public domain with inventions further promoted progress. It allowed other inventors could use, learn from, and improve upon the inventions.

Many notable patents in the “public domain” didn’t get there after their 20-year time ended. They were instead dedicated to the industry by their owner. For example, Elon Musk dedicated his patents that protected the electric vehicle technology of Tesla cars to the public domain to advance the science. 

Copyright Limits

The 1790 Copyright Act granted limited rights to authors and artists. That act (and the subsequent amendments and changes to the original framework) is codified in Title 17 of the United States Code.

The Founders wanted to further the “encouragement of learning.” The original Copyright Act secured for authors the “sole right and liberty of printing, reprinting, publishing and vending” copies of their “maps, charts, and books” for 14 years. It included the right to renew for one additional 14-year term, should the copyright holder still be alive.

This limited monopoly is different from patent law. It is tied directly to the author rather than the invention. It technically attaches to newly created wor, meaning registration is not necessarily required. Government-granted copyrights, however, allow authors to profit off of their works while living and prevent anyone else from using their creations.

The length of a copyright has changed dramatically since the 1790 Copyright Act. Lawmakers found compelling the argument that authors should be able to continue to profit off their work, and they extended the time limit for copyrights.

• In 1831, copyright terms were changed to 28 years with a renewal of 14 years.
• In 1909, terms were increased to 28 years with a renewal of 28 years (56 years total).
• In 1976, copyright law was amended to protect works for 50 years after the author’s death (common in Europe) or 75 years for corporate or anonymously owned works.

Since 1976, Disney specifically has effectively lobbied for extended terms and single-handedly changed copyright law in a way that has stopped authors and creators from building on popular ideas. In 1998, a final act was passed.

The Sonny Bono Copyright Term Extension Act

The modern “limited monopoly” owes its structure, in part, to the “Sonny Bono Copyright Term Extension Act of 1998.” Despite its formal name, the law is popularly known as the “Mickey Mouse Protection Act.” For works created after 1978, a copyright lasts for the lifetime of the author and 70 years after the author’s death. Corporate works are protected under copyright law for 95 years from their original publication or 120 years from creation – whichever expires first.

This means that the House of Mouse is safe until 2024. Once that magic date comes, just like a patent, the copyrighted work enters the public domain. At that point, anyone can use, publish, perform, and create derivatives of the work. The copyright public domain helps foster further creativity and allows people to use the works in ways they otherwise were unable to when the work enjoyed copyright protection.

Why Disney Faces Headwinds in Extending Copyright Protections

Disney is known for being unabashedly litigious in protecting their brand. From suing daycare centers using the Mouse’s imagery in their buildings’ murals to aggressively going after creators of fan art, their track record is arguably impressive.

Concerns over copyright extensions today, however, look very different than they did when Disney effectively lobbied in the 90s. As attorney and artist Steve Schlackman explains:

 Major lobbying organizations like the  Electronic Frontier Foundation or Creative Commons are much larger than in 1998. Internet companies like Google didn’t even exist 20 years ago but have become a powerful force against copyright because their business model requires providing content to the public, such as thumbnails on Google images. Copyright significantly impacts their ability to deliver content, so they have become powerful opponents of expanding copyright protections.

Most importantly, the Internet has provided a greater flow of information, allowing for broad grassroots engagement on copyright issues. A great example was the massive online protests against the Stop Online Piracy Act (SOPA) in 2012. 

[…]

The defeat of SOPA and subsequent protests against congressional overreaches, like net neutrality, has essentially ended efforts to expand copyright protection through legislation. Since 2012, there has been no significant legislation around copyright.  

Further complicating Disney’s ability to lobby for enhanced copyright protection for Mickey has been the ongoing political battle the company faces in Florida. For nearly a year, Republicans on the hill have indicated opposition to extending copyrights specifically because it would benefit Disney. Such opposition has grown even stronger in recent months as Governor Ron DeSantis has squared off with the company he believes to be too “woke.”

What Mickey’s Shift to the Public Domain Means

For long-time fans of Mickey Mouse (or Disney stock), the copyright debate might not necessarily be the end of protecting the company’s treasured character. Technically speaking, only one iteration of Mickey Mouse will enter the public domain, and he doesn’t look like the one we most easily recognize. 

Mischievous, rat-like, and fully monochrome, those without knowledge of Disney’s brand history would be forgiven for not recognizing the Steamboat Willie image by name. The more classic version featuring friendly features and his classic red shorts, on the other hand, will remain protected.

That does not, however, mean open season on the Steamboat Willie. As the New York Times reported:

Disney also holds trademarks on its characters, including the “Steamboat Willie” version of Mickey Mouse, and trademarks never expire as long as companies keep submitting the proper paperwork. A copyright covers a specific creation (unauthorized copying), but trademarks are designed to protect against consumer confusion — to provide consumers assurance about the source and quality of a creation.

Boiled down, any public domain use of the original Mickey cannot be perceived as coming from Disney, [Columbia Law School professor Jane C.] Ginsburg explained. This protection is strong, she added, because the character, even in his early form, has such close association with the company. People glance at those ears and smile and “automatically associate it with Disney,” she said.

In a recent episode of Last Week Tonight with John Oliver, the legendary host threw down the gauntlet on this subject. Acknowledging Disney’s history, he essentially dared the company to come after him. As it turns out, the dare has been building up for almost a year, as Oliver has included Steamboat Willie’s Mickey Mouse in his opening credits for this entire season.

Will Disney take the bait? That remains to be seen. What we do know is that, as the world has evolved, our understanding of copyright law and its trajectory has shifted, too.

Waning Public Appetite for Extending Copyrights

The Founding Fathers had their reasons for protecting intellectual property, albeit using different language. Sentiment has changed dramatically over the years, and organizations have been built around that sentiment.

Musk might have gotten some solid PR out of his intellectual property position, but artists are all-in, too. For a prime example of utilizing works in the public domain, consider Librivox. A non-profit company, it provides audiobooks of legally reproducible, public-domain works. In recent years, a growing movement of authors and artists have dedicated their works to the public domain to foster creativity.

Even Disney, to some end, recognizes this new reality. They already released Steamboat Willie for public consumption on YouTube in 2009.

The length of the exclusive “limited monopoly” has changed several times since the signing of the Constitution and the Copyright Clause. However, no patent or copyright will last forever – no matter how many times Congress moves to extend those monopolies. Our Constitution contemplates a “limited time,” and until amended, the public domain will continue to grow and provide enterprising young inventors, authors, and artists with inspiration.

Disney and Mickey aren’t the only ones who have reason to be concerned about copyright law. You and your business should pay attention, too. If you’re looking to learn more about the laws involved, you may want to check out some of our on-demand webinars, including:

• Copyrights, Patents, and Trademarks… Oh My!

• Using Copyrighted Material Without Violating Copyright Law: The Fair Use Doctrine

• The Intersection of Bankruptcy and Intellectual Property Law

For more information about our other on-demand webinar series, click here.

This is an updated version of an article published in 2017. ©2023. DailyDACTM, LLC d/b/a/ Financial PoiseTM. This article is subject to the disclaimers found here.