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Who Owns Mickey Mouse?

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Who Owns Mickey Mouse?


Evil Mickey Mouse by flickr user Ikayama

The easy answer to this article’s title is “Disney”, but it’s not exactly that simple. Joseph Menn recently published an article in the LA Times that caught my eye: it’s all about the copyright specifics concerning the famous Mouse, the biggest fictional character in history. Although the legal thicket surrounding copyright law is rather tiring for anyone who isn’t a law student, the idea of maintaining copyright “in perpetuity” is a pretty interesting concept to think about (since it, well, prevents the public domain from ever expanding), and ideally copyright should be a distant-but-important concern for any designer or creative type. Ideally.

So it turns out that over the past several years, several legal scholars have been trying to prove that due to a mis-filing of copyright on the original “Steamboat Willie” title screen, Disney was never able to properly copyright the source of its character. While the character is still registered as a trademark, some of the original 1920s cartoons and their versions of Mickey have, if you follow the scholars’ logic, “fallen” into the public domain.

Mickey Thing by flickr user dawnzy58

Disney calls the new claims “frivolous,” implying that the silly obscurity of the argument can be (and certainly will be) easily dismissed in court. It gets interesting when you discover, however, that Disney has resorted to similar legal contortions several times–often in order to argue the very same thing: that works supposedly under copyright are actually in the public domain (often around the time Disney released a film based on the work, of course).

The most notable example is the copyright on “Bambi”, a work I had no idea was based on an Austrian book. Disney successfully argued Bambi was part of the public domain by the 1950s, the reason being that its original copyright notice was published 3 years too late. Writes Joseph Menn:

In the 1930s, Salten’s [the author of Bambi] rights were assigned to Disney, which made the famous 1942 movie. When Salten’s heirs renewed the copyright in 1954, they correctly listed 1926 as the year of Bambi’s first copyright.

But in a 1994 dispute over royalties with a small publisher that had acquired the Salten family’s rights, Disney lawyers said the 1954 copyright was void because it was filed three years too late — based on the fact that the story was first published in 1923. A federal judge sided with Disney, ruling Bambi was in the public domain.

Of course we all know big companies with massive legal teams and heavy financial interests to protect can easily use obscure parts of the law to argue their case, and the amount of firepower they can put behind those arguments is never short of impressive. The legal costs can bankrupt whoever might step up.

Another Mickey Thing by flickr user cgines

Disney has a somewhat illustrious history with recent copyright legislation: the casual name for Sonny Bono’s 1998 Copyright Term Extension Act is the Mickey Mouse Protection Act, both due to the timing of its passage and heavy industry lobbying from its main benefactor. When it passed, several opponents called it “corporate welfare” for the deference it gives to copyright holders.

Eventually, the act was brought before the US Supreme Court in a suit that called it unconstitutional. The plaintiff was Eric Eldred, one of the co-founders of the famous Creative Commons. While his suit was defeated 7-2, one of the dissenting opinions (.pdf) explains the problem with the act:

The older the work, the less likely it retains commercial value, and the harder it will likely prove to find the current copyright holder. The older the work, the more likely it will prove useful to the historian, artist, or teacher. The older the work, the less likely it is that a sense of authors’ rights can justify a copyright holder’s decision not to permit reproduction, for the more likely it is that the copyright holder making the decision is not the work’s creator, but, say, a corporation or a great-grandchild whom the work’s creator never knew.

The general argument for liberalized copyright laws goes something like this: some of the greatest works of art in history were created from other sources, so eternal copyright will bankrupt a large number of future artists, way down the road. As lawyer Chris Sprigman explains:

Borrowing is ubiquitous, inevitable, and, most importantly, good. Contrary to the romantic notion that true genius inheres in creating something completely new, genius is often better described as opening up new meanings on well-trodden themes. Leonard Bernstein’s reworking in West Side Story of Romeo and Juliet is a good example.

Have your own views on how long a copyright should last? Share your comments!

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