Mickey, Disney, and the Public Domain: a 95-year Love Triangle


by Jennifer Jenkins, Director, Duke Center for the Study of the Public Domain

CC BY 4.0 

Image of Steamboat Willie Entering the Public Domain by Doo Lee

On January 1, 2024, after almost a century of copyright protection, Mickey Mouse, or at least a version of Mickey Mouse, will enter the United States public domain. The first movies in which the iconic mouse appeared – Steamboat Willie and the silent version of Plane Crazy­[1] – were made in 1928 and works from that year go into the public domain in the US on New Year’s Day 2024.[2] (Note that this article is only about US law. Outside of the US, it appears that Steamboat Willie is also in the public domain in some countries, while it remains copyrighted in others.)[2a]

The public domain has had some famous recent arrivals, but this is the most anticipated entry yet. Why? It is not simply that Mickey is a famous copyrighted character. So are Sherlock Holmes and Winnie the Pooh, and while they entered the public domain with some fanfare, it paled in comparison to this event. I’d like to offer a tentative answer. The reason that this event gathers so much attention is that it is the story of a 95-year-old love triangle, a tangled drama that rivals any Disney movie for twists and turns. The protagonists are Mickey, Disney and the Public Domain, and their relationship positively exemplifies the social media weasel-words “it’s complicated.”

On the one hand, Disney pushed for the law that extended the copyright term to 95 years, which became referred to derisively as the “Mickey Mouse Protection Act.”  This extension has been criticized by scholars as being economically regressive and having a devastating effect on our ability to digitize, archive, and gain access to our cultural heritage. It locked up not just famous works, but a vast swath of our culture, including material that is commercially unavailable. Even though calling it the “Mickey Mouse Protection Act” may overstate Disney’s actual role in the legislative process – the measure passed because of a much broader lobbying effort – Disney was certainly a prominent supporter, and the Mouse was sometimes a figurehead.

On the other hand, Disney itself is a talented and successful practitioner of building upon the public domain. In fact, the public domain is Disney’s bread and butter. Frozen was inspired by Hans Christian Andersen’s The Snow Queen. The Lion King draws from Shakespeare’s Hamlet, Biblical stories, and possibly an epic poem about the founder of the Mali Empire.[3] Fantasia's “The Sorcerer's Apprentice” comes from a poem by Johann Wolfgang von Goethe and in other segments the Fantasia film showcases public domain classical music. Alice in Wonderland, Snow White,The Hunchback of Notre Dame, Sleeping Beauty, Cinderella, The Little Mermaid, and Pinocchio came from stories by Lewis Carroll, The Brothers Grimm, Victor Hugo, Charles Perrault, Hans Christian Anderson, and Carlo Collodi.

The public domain includes not only works over which copyright has expired or never existed, but also uncopyrightable aspects of contemporary works—such as ideas, stock elements, and unoriginal material. The Mickey character itself is based on such public domain fodder. His personality and antics drew from silent film stars such as Charlie Chaplin and Douglas Fairbanks. Walt Disney told The American Magazine: “I think we were rather indebted to Charlie Chaplin …We wanted something appealing and we thought of a tiny bit of a mouse that would have something of the wistfulness of Chaplin…a little fellow trying to do the best he could.”[4] Ub Iwerks, who animated most of Steamboat Willie, wrote that Douglas Fairbanks “was the super-hero of his day, always winning, gallant and swashbuckling. Mickey’s action was in that vein…I thought of him in that respect, and I had him do naturally the sort of thing Doug Fairbanks would do.” Titles are also not copyrightable, and the name “Steamboat Willie” was a nod to the title of Buster Keaton’s film from earlier the same year, Steamboat Bill, Jr.[5]

Hence the triangle. Disney is both an emblem of term extension and its erosion of the public domain, and one of the strongest use-cases in favor of the maintenance of a rich public domain. Mickey is the symbol of both tendencies. Ironies abound. It may not be exactly the same as an oil company relying on solar power to run its rigs, but it is definitely in the same “massive irony” zip code. All of this makes the year when copyright finally expires over Mickey Mouse highly symbolic. The love triangle between Mickey, Disney, and the public domain is about to evolve, and perhaps even resolve, in real time.

But what does public domain status actually mean for the Steamboat Willie version of Mickey?[6] There is a vast amount of misinformation about these issues online. In what follows, I will try to offer a straightforward explainer. What can and can’t you do with the Mickey Mouse character as of January 1, 2024? How will Disney be affected? Does Disney still hold copyrights over later versions of Mickey? Does trademark law play a role? Keep reading for details.


What can I do with Mickey Mouse as of January 1, 2024?

What about more recent versions of Mickey?

What about Disney’s trademark over Mickey?

The Public Domain: A Wellspring of Creativity


What can I do with Mickey Mouse as of January 1, 2024?


The answer, ironically, is distinctly mouse-shaped! Here is a diagram.

A green circle with black text and words

As explained by Karyn A. Temple, former United States Register of Copyrights, the public domain “is part of copyright’s lifecycle, the next stage of life for that creative work. The public domain is an inherent and integral part of the copyright system…It provides authors the inspiration and raw material to create something new.”

Steamboat Willie and the characters it depicts – which include both Mickey and Minnie Mouse – will be in the public domain. (Courts have made clear that “when a story falls into the public domain, story elements — including characters covered by the expired copyright — become fair game for follow-on authors.”) As indicated in the green circle, this means that anyone can share, adapt, or remix that material. You can start your creative engines too—full steam ahead! You could take a page out of the Winnie-the-Pooh: the Deforested Edition playbook and create “Steamboat Willie: the Climate Change Edition,” in which Mickey’s boat is grounded in a dry riverbed. You could create a feminist remake with Minnie Mouse as the central figure. You could reimagine Mickey and Minnie dedicating themselves to animal welfare. (The animals in Steamboat Willie are contorted rather uncomfortably into musical instruments. PETA would not approve.)

You can do all of this and more, so long as you steer clear of the subsisting rights indicated by the orange circles, namely:

  • Use the original versions of Mickey and Minnie Mouse from 1928, without copyrightable elements of later iterations (though not every later iteration will be copyrightable, as I explain below) and

  • Do not confuse consumers into thinking that your creation is produced or sponsored by Disney as a matter of trademark law. One way to help ensure that your audience is not confused is to make the actual source of the work – you or your company – clear on the title screen or cover, along with a prominent disclaimer indicating that your work was not produced, endorsed, licensed, or approved by Disney.

So, is January 1, 2024 doomsday for Disney? No. Disney still retains copyright over newer iterations of Mickey such as the “Sorcerer’s Apprentice” Mickey from Fantasia (1940) as well as trademarks over Mickey as a brand identifier. People will still go to its theme parks, pay to see its movies, buy its merchandise. Its brand identity will remain intact.

In sum, yes, you can use Mickey in new creative works. There are some more complex peripheral legal issues, but here is your guide through them.

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What about more recent versions of Mickey?


Mickey Glove Pointing for directional sign to the clubhouse ...

Copyright expiration allows you to use the original Mickey and Minnie Mouse in new creative works, even though those characters also appear in more recent works that are still under copyright.

With newer iterations of those characters, Disney only owns original, creative expression that qualifies for copyright, not mere ideas, unoriginal or stock character features, or “merely trivial” variations to the original characters.

In 2024 Mickey Mouse joins a host of other familiar public domain characters—Winnie the Pooh, Sherlock Holmes, Dracula, Frankenstein’s Monster, Robin Hood, Snow White, Cinderella, and Alice in Wonderland. You can use Mickey and Minnie 1.0, as they appeared in Steamboat Willie and Plane Crazy, even though these characters also appear in later, still-copyrighted works. Under copyright law, Disney only owns the newly added material in subsequent works, not underlying material from 1928—that content remains freely available.[7]

“It is a bedrock principle of copyright that once work enters the public domain it cannot be appropriated as private (intellectual) property, and even the most creative of legal theories cannot trump this tenet.” –Klinger v. Conan Doyle Estate (N.D. Ill. 2013) aff’d (7th Cir. 2014)

This point was illustrated by the Conan Doyle Estate Ltd.’s unsuccessful attempts to artificially extend the expired copyright over the characters of Sherlock Holmes and Dr. Watson, covered on last year’s Public Domain Day site. A court confirmed that all of the story elements in public domain works are “free for public use”: “Where an author has used the same character in a series of works, some of which are in the public domain, the public is free to copy story elements from the public domain works.”

Mickey’s appearance has changed over time, going from a vaguely rat-like to a more neotenous appearance. He eyes varied over time and began as large white ovals with pupils in Plane Crazy and smaller black dots in Steamboat Willie – both of those versions of Mickey are public domain in 2024. In 1929 he quickly donned gloves (apparently so that his hands were more visible against his body) and later he was colorized.” The overall appearance of Fantasia Mickey and other later Mickeys is still under copyright.

A cartoon of a mouse

That said, not every feature of Mickey’s later iterations is individually copyrightable. Copyright only extends to “original, creative expression.” Mere ideas are not eligible, nor are unoriginal features or stock elements. When copyright is claimed over additions to preexisting content – such as changes to the 1928 Mickey character – those changes have to be more than a “merely trivial” or “miniscule” variation on what came before.[8] It is not enough for the new material just to be different; it has to meet copyright’s threshold requirements for protectability.

Therefore, while the safest approach may be to stick to Mickey circa 1928 in new creations, copyright law also lets you use later material that does not qualify for copyright. Your mouse can speak intelligibly in a high voice even though Mickey 1.0 does not do so; giving a talking mouse a squeaky voice is not copyrightable. Generic character traits such as being adorable and having less jaunty dance moves are fair game. What’s more, anything you “independently create” – or come up with yourself – is legal. Choosing your own color scheme is fine; you do not have to stick to black and white.

Can Disney claim copyright over the color red – standing alone – for Mickey’s shorts? On the one hand, when talking about copyright’s “originality” requirement, the Supreme Court said that “the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, ‘no matter how crude, humble or obvious’ it might be.” But the law is also clear that adding something to a prior work must be more than a “merely trivial” variation. To us, the argument seems stronger that choosing a single, bright, primary color for an article of clothing does not meet the copyrightability threshold. That said, you may be more comfortable selecting your own color scheme. (This article shows a fully colorized poster of Mickey Mouse “made in 1928,” but it is not clear if the poster was “published” for copyright purposes in 1928, so we do not have the information necessary to confirm whether this more recent-looking version of Mickey is entering the public domain.)

Note that the public domain enables all sorts of remakes. In the short term, buzzworthy reuses such as horror films tend to attract attention because of the shock value and incongruity with the original characters. In the long term, however, our culture gets to decide what kinds of remakes stand the test of time and retain cultural resonance. Think of all the other public domain children’s characters that Mickey is joining – Alice in Wonderland, Snow White, Cinderella, Pinocchio, Santa Claus. What reimaginings come to mind? All of the beloved and artistic movies by Disney and others. These are the kinds of uses that have been rewarded in the marketplace and maintained enduring appeal.

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What about Disney’s trademark over Mickey?


The plot thickens when you add Disney’s trademark rights to the picture. Many sources claim that even though Mickey is copyright-free in 2024, you still cannot use the character because it is trademarked by Disney. But this is not what the law actually says. Trademark law only prohibits the use of a trademarked character if doing so “is likely to cause confusion, or to cause mistake, or to deceive” consumers about the source or sponsorship of the new product.[9]


Mickey Glove Pointing for directional sign

Trademark law does not prevent you from using the 1928 Mickey character unless consumers will be misled into thinking your work is produced or sponsored by Disney.


First, some background. Copyrights and trademarks are different. Copyrights cover creative works and prevent people from copying and adapting them without permission, with the goal of providing economic incentives to create and distribute cultural material. The US Constitution requires that these rights expire after a “limited time,” so that the public and future creators can have unfettered access to creative works.

Trademarks cover words, logos, images, and other signifiers that serve as brands identifying the source of a product. The goal is to minimize consumer confusion in the marketplace. Nike can prevent other producers of athletic apparel from putting “Nike” or a swoosh on their merchandise so that when purchasers see those indicators, they know they are getting a Nike product. But it does not own the word “Nike” outright; there are lots of uses of “Nike” that do not violate trademark, whether referring to the Greek goddess of victory or to the brand in a non-confusing way.

Unlike copyrights, trademarks do not automatically expire. They can last as long as a mark is still being “used in commerce.” If Amazon goes on using the “Amazon” brand for 500 years, the trademark stays alive. While trademarks can outlast copyrights, however, the rights themselves are more circumscribed. For most marks, trademark law only prevents the use of a mark on similar products when it is likely to create consumer confusion about the product’s origin or sponsorship.[10] Non-confusing uses are not prohibited, and there are a variety of legal safeguards for uses of trademarks in connection with expressive works such as films, books, and songs.

Sometimes copyrights and trademarks overlap.[11] A character such as Mickey Mouse and Winnie the Pooh might be covered both by copyright law (as a creative work) and trademark law (as a logo if, when people see the character on a backpack or pajamas, they think it must be official Disney merchandise). While the copyright is active, Disney can keep people from making unauthorized uses of Mickey in new works (unless those uses qualify for “fair use” protection, as with a parody). While the trademark is in effect, Disney can keep people from slapping Mickey on luggage or apparel.

“We have been careful to caution against misuse or overextension of trademark and related protections into areas traditionally occupied by . . . copyright.” Dastar v. Twentieth Century Fox (Supreme Court 2003)

But what happens when the copyright expires and the trademark is ongoing? In a unanimous opinion, the Supreme Court made clear that trademarks cannot be used to make an end run around copyright law because this would “create a species of mutant copyright law that limits the public’s federal right to copy and to use expired copyrights.”[12] In other words, trademark rights cannot be used to block the freedoms that the expiration of copyright allows, such as using a public domain character in a new creative work. Along the same lines, the Ninth Circuit Court of Appeals explained that when a work enters the public domain “[w]e all own it now” and trademark law “cannot be used to circumvent copyright law. If material covered by copyright law has passed into the public domain, it cannot then be protected by the Lanham Act [the federal trademark statute] without rendering the Copyright Act a nullity.”[13] Those who tell you otherwise are mistaken.

This brings us to Mickey Mouse. The Steamboat Willie copyright expires in 2024. But Disney still retains trademark rights to use images of Mickey as well as the words “Mickey Mouse” in connection with a variety of products. Here are some of its federally registered Mickey images for merchandise such as clothing, backpacks, watches, linens, toys, blankets, lunch boxes, and water bottles.

Trademark image

Disney has also started using this logo before some of its films.

A logo for a movie

If you make your own Mickey cartoon, can Disney use trademark law to interfere? Trademark law is all about preventing consumer confusion – and not about getting in the way of creativity – so it depends on whether people are likely to be misled about the source of your cartoon. As long as no one thinks it is a Disney joint, there should not be a trademark problem.

When might consumers think you are offering a Disney-sponsored product? Here it is important to distinguish between different uses of the Mickey character. Certainly, there might be a risk of confusion if you use Mickey as a brand identifier on the kind of merchandise Disney sells. Trademark law does protect Disney against that risk. Consumers may also be confused if Mickey is used in an artistic work in a way that suggests it is a Disney production, for example by appearing as a logo at the beginning of an animation.

Contrast these uses with putting the Mickey character in a new cartoon or book. The latter is not the kind of use that misleads as to the source of a product. It is exactly what copyright expiration is intended to allow.[14] Were trademark law to prevent this, then trademark rights would be leveraged to obtain the effective equivalent of a perpetual copyright—precisely what the Supreme Court said we cannot do. As mentioned earlier, one way to dispel potential confusion is to make it clear that you – and not Disney – are responsible for the new work, and to add a disclaimer making it clear that your work is not produced or sponsored by Disney.

Moving beyond the Mickey character, what about Disney’s trademark over the “Mickey Mouse” name?  Here too putting the words “Mickey Mouse” on toys or onesies is different from using “Mickey Mouse” to describe the content of a new creative work. With the latter, a disclaimer is also helpful. One court explained: “When a public domain work is copied, along with its title, there is little likelihood of confusion when even the most minimal steps are taken to distinguish the publisher of the original from that of the copy. The public is receiving just what it believes it is receiving—the work with which the title has become associated. The public is not only unharmed, it is unconfused.”[15]

With artistic uses of trademarked material, the First Amendment’s protection for freedom of expression also comes into play. Trademark law has a number of speech-protecting limitations that safeguard expressive uses. This is why when Mattel sues people for using “Barbie” in the titles of songs and photographs, they lose in court. Mattel also lost when it objected to the use of the doll’s trademarked appearance in a series of photographs criticizing its role in our culture.[16]

One defense allows “nominative use” of a trademark as a point of reference – for example, using “Mickey Mouse” accurately to refer to the public domain character in your work. Another comes from a case called Rogers v. Grimaldi, which privileged the use of trademarks in titles of expressive works as long as the term has some artistic relevance to the new work and does not explicitly mislead as to the source of the work.[17] The policy underlying this rule is that trademark law should only apply to artistic works when the public interest in avoiding consumer confusion outweighs the public interest in free expression. While a disclaimer is not required to benefit from these limitations, it can nevertheless be useful to make abundantly clear that you are not providing an official Disney production.

Finally, there is a small subset of extremely “famous” marks – essentially, superbrands – that receive extra “anti-dilution” protection against unauthorized uses that impair the distinctiveness or harm the reputation of the famous mark, even when there is no consumer confusion. Fame has a specialized meaning here: only trademarks that are widely recognized by the general public as a brand signifier qualify. While the mouse-ears silhouette or current iteration of the Mickey logo might fall into this category of famous marks, the Mickey character from Steamboat Willie does not.[18] (Just because a brand is “famous” for trademark purposes does not mean that all of its trademarks are considered famous; “Nike” is famous but many of its product names are not.) And even if Mickey 1.0 does eventually qualify, anti-dilution protection is subject to important First-Amendment exceptions that allow for the kinds of expressive uses discussed earlier.[19]

Bottom line: trademark law has a number of rules designed to safeguard expressive uses and prevent trademark law from overriding copyright law. Nonetheless, people sometimes still try to use trademark law to interfere with legal reuses of public domain material, leading to unnecessary litigation and chilling effects. Zorro Productions, Inc. and Edgar Rice Burroughs, Inc. did this with the Zorro works and the Tarzan and John Carter works. Zorro lost in court—because the Zorro story was in the public domain, a new “Queen of Swords” TV series about Zorro’s sword-wielding daughter could proceed.[20] Burroughs was able to extract a joint licensing deal from the publisher of new “Lord of the Jungle” and “Warlord of Mars” comic books; even the threat of lawsuits can chill creative reuse. Going forward, will Disney’s legal actions reflect the relevant law, enforcing only the rights it still owns, or will it try to stop what copyright expiration allows?

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The Public Domain: A Wellspring of Creativity


Think of all of the works spawned by public domain stories and characters, whether it is Shakespeare’s plays, Jane Austen’s novels, Mary Shelley’s Frankenstein, or Bram Stoker’s Dracula. Shakespeare alone has inspired hundreds of new creations. 10 Things I Hate About You and Kiss Me Kate come from The Taming of the Shrew, West Side Story from Romeo and Juliet, Forbidden Planet from The Tempest. Shakespeare himself drew on his public domain predecessors. As a federal judge observed, if the underlying works were copyrighted, “Measure for Measure would infringe Promos and Cassandra, Ragtime would infringe Michael Kohlhaas, and Romeo and Juliet itself would have infringed Arthur Brooke’s The Tragicall Historye of Romeo and Juliet . . . which in turn would have infringed several earlier Romeo and Juliets, all of which probably would have infringed Ovid’s story of Pyramus and Thisbe.”

Disney and Mickey are part of this rich tradition, and in the end, Disney can continue to enjoy a plentiful intellectual property portfolio while also enriching the public domain. As mentioned earlier, Disney’s wonderful works exemplify just how valuable the public domain is. It has borrowed prolifically and brilliantly from the public domain, Disney-fying older works to make its beloved films: The Three Muskateers came from Alexandre Dumas, A Christmas Carol from Charles Dickens, Beauty and the Beast from Gabrielle-Suzanne de Villeneuve, Around the World in 80 Days from Jules Verne, Alice in Wonderland from Lewis Carroll, Snow White from The Brothers Grimm, The Hunchback of Notre Dame from Victor Hugo, Sleeping Beauty and Cinderella from Charles Perrault, The Little Mermaid from Hans Christian Anderson, Pinocchio from Carlo Collodi, Huck Finn from Mark Twain, Robin Hood from English folklore, and Aladdin from The Book of One Thousand and One Nights.

Let us hope that Disney remembers its own debt to the public domain as Mickey Mouse enters the realm from which it has drawn so heavily!

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To celebrate its entry into the public domain, here is a legal explainer from Steamboat Willie itself.

[1] Steamboat Willie was a technological marvel – one of the first cartoons featuring fully synchronized sound. After seeing the 1927 film The Jazz Singer (the first feature-length film with synchronized dialogue, highlighted on last year’s Public Domain Day page) Walt Disney realized that sound films were “here to stay.” See Dave Smith, Chief Archivist Emeritus, The Walt Disney Company, Steamboat Willie. With animator Ub Iwerks, he created Steamboat Willie. Disney himself performed the (mostly unintelligible) dialogue. The cartoon was a hit with audiences and lauded by critics for its ingenuity. It was initially set to enter the public domain in 1984, after a 56-year term. An expansion in 1978 pushed the date forward to 2004. Then in 1998 it was delayed until 2024 by the Copyright Term Extension Act (this is what some people call the “Mickey Mouse Protection Act”). There is even a possibility that Steamboat Willie might technically have gone into the public domain on release because of defects in its original copyright notice, cite, but in 2024 we know for sure that it is free of copyright.

[2] Mickey’s first appearances were actually in earlier cartoons from 1928, Plane Crazy and The Gallopin’ Gaucho. Both were silent films and neither attracted a distributor. It was Steamboat Willie – which had synchronized sound – that put Mickey on the map. The data in the Catalog of Copyright Entries indicates that the silent version of Plane Crazy is also entering the public domain 2024. The sound version of this film is public domain in 2025. We could not find a 1928 registration or timely renewal for The Gallopin’ Gaucho, but the copyright notice on the sound version says 1929, putting it in the public domain in 2025. Even though the name “Minnie Mouse” was not used until 1929 (so far as we can tell), the names of fictional characters, standing alone, are not copyrightable. See the Copyright Office Compendium: “Words and short phrases, such as names, titles, and slogans, are not copyrightable because they contain a de minimis amount of authorship…[including] the name of a character.” Therefore, while using the “Minnie Mouse” name in conjunction with other copyrightable features of her later iterations could infringe subsisting copyrights, using the name by itself does not. “Minnie Mouse” would only be subject to trademark rights discussed later in this article. That said, in an abundance of caution, some creators may prefer to choose their own name for the female mouse until 2025, when the cartoon where she makes her first named appearance will be public domain.

[2a] Mickey Mouse is not entering the public domain in some countries that have a life-plus-70-year term for older works. However, it appears that Mickey 1.0 may be in the public domain in life-plus-50 countries as well as life-plus-70 countries that follow the “rule of the shorter term” for US works, including the UK and much of the EU, with the exception of member states such as Germany that have special rules. Please note that this is not legal advice, and users should consult local copyright experts for details about the law in their jurisdiction.

[3] Many have observed that “The Lion King” tracks an epic poem about Sundiata Keitam – whose name means “Lion Prince” – the founder of the Mali Empire. See Kellie Carter Jackson, The true story behind “The Lion King.” This article also tells the story of the song “The Lion Sleeps Tonight,” which originated with South African Zulu singer Solomon Ntsele Linda; it is the subject of the Netflix documentary “ReMastered: The Lion’s Share.”

[4] As described by Alva Johnston, Mickey and Chaplin “have the same blend of hero and coward, nit-wit and genius, mug and gentleman.” Walt Disney also studied other great silent film actors whose films we have celebrated on this site, including Buster Keaton, Harold Lloyd, and Laurel and Hardy. Many commentators have also pointed out that – as with other cartoon characters from the era – Mickey Mouse’s appearance and other characteristics echo the demeaning blackface caricatures in minstrel shows, a distressing reminder of the racist stereotypes that were prevalent at the time. See Nicholas Sammond, Birth of an Industry: Blackface Minstrelsy and the Rise of American Animation (Duke University Press 2015).

[5] Steamboat Bill, Jr. went into the public domain decades ago because its copyright was not renewed. The earlier Mickey cartoon from 1928, The Gallopin’ Gaucho, drew on the silent film The Gaucho, with Mickey echoing some of the titular character’s actions.

[6] We actually had a dress rehearsal on these questions in 2022 with Winnie-the-Pooh – who was then another newly public domain Disney character that reappeared in later, copyrighted works and was also covered by trademark rights – went into the public domain. You can read that analysis here.

[7] To quote the Copyright Office primer on derivative works: “[I]t is not possible to extend the length of protection for a copyrighted work by creating a derivative work…the copyright in the derivative work will not extend to the public domain material, and the use of the public domain material in a derivative work will not prevent anyone else from using the same public domain work for another derivative work.”

[8] See the Copyright Office Compendium. Regarding generic character traits, courts have held that being “nice,” having a “cocky attitude,” and being “young, attractive, and sarcastic” are not independently copyrightable See Shame on You Prods. v. Banks (C.D. Cal. 2015, aff’d 9th Cir. 2017); Campbell v. Walt Disney Co. (N.D. Cal. 2010); Gable v. Nat’l Broad. Co. (C.D. Cal. 2010).

[9] 15 U.S.C. §§1114, 1125(a).

[10] A small subset of superbrands with “famous” marks gets extra protection against “dilution” that impairs the distinctiveness or harms the reputation of the famous mark, but this is subject to exceptions for expressive uses.

[11] For more detailed legal analyses of this phenomenon, see Elizabeth L. Rosenblatt, The Adventure of the Shrinking Public Domain and Irene Calboli, Overlapping Trademark and Copyright Protection: A Call for Concern and Action. You can also read related stories by Sansu the Cat in Medium and Timothy B. Lee in Ars Technica.

[12] Dastar v. Twentieth Century Fox, 539 U.S. 23 (2003) dealt with an attempt to make an attribution-like claim under the federal trademark statute over public domain works, but the larger policy underlying the decision is that trademark law cannot be used to circumvent copyright expiration. Dastar had repackaged parts of a public domain documentary, removing the original credits and presenting it as a Dastar production. Twentieth Century Fox owned the copyrights to the documentary before they expired and claimed that Dastar violated trademark law by passing off Fox’s work as its own and failing to attribute it to Fox. The Supreme Court rejected this claim.

[13] Comedy III v. New Line, 200 F.3d 593 (9th Cir. 2000).

[14] The McCarthy trademark treatise explains: “The expiration of copyright on a copyrighted work, such as a motion picture containing a cartoon character, should place limits on the scope of trademark rights in the character. Under the view that upon expiration of copyright the public should have free use of the work, copyright policy requires that anyone should be able to reproduce, display and perform the out-of-copyright motion picture so long as there is no confusion as to the source, sponsorship or affiliation of the seller of the reproduced film,” and “a court should not permit trademark in an image to serve the same function as did the lapsed copyright to exclude others from reproducing and distributing the out-of-copyright work, such as a film . . . a balancing of the rights of trademark and of the 'public domain' status of out-of-copyright works is needed. A similar balancing is made when constitutional free speech policies are balanced against the prevention of consumer confusion.” J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, § 6.30.

[15] Maljack Prods. v. Goodtimes Home Video Corp., 81 F.3d 881 (9th Cir. 1996), quoting Leslie A. Kurtz, Protection for Titles of Literary Works in the Public Domain, 37 Rutgers L.Rev. 53, 77 (1984). See also Walt Disney Productions v. Souvaine Selective Pictures, Inc. (2d Cir. 1951) (Disney could not prevent another film producer from using the title “Alice in Wonderland” because “the book ‘Alice in Wonderland’ is no longer subject to copyright and is as much in the public domain as are Shakespeare’s plays. Anyone has a legal right to make a picture based on Louis Carroll’s book and entitled ‘Alice in Wonderland.’”)

[16] Mattel, Inc. v. Walking Mountain Productions, 353 F.3d 792 (9th Cir. 2003); Mattel case: Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002)

[17] In a 2023 case the Supreme Court let the Rogers test stand for these kinds of uses. Jack Daniel's Properties, Inc. v. VIP Products LLC, 143 S. Ct. 1578 (2023)

[18] In order to claim copyright in newer versions of Mickey Mouse, Disney needs to argue that they are different from Mickey 1.0. Having said that, it cannot then argue that Mickey 1.0 is effectively the same as the more famous Mickey and therefore enjoys the same status.

[19] 15 U.S.C. §1125(c)(3).

[20] See Sony v. Fireworks, 137 F.Supp.2d 1177 (C.D. Cal. 2001) (the case also included unsuccessful copyright claims). You can read more about Zorro Productions, Inc.’s tactics in Stephen Carlisle’s “Will the ‘Mark’ of Zorro Defeat Court's Public Domain Ruling?”.

Written by Jennifer Jenkins. Special thanks to Doo Lee for the introductory cartoon, to Sean Dudley for research and image creation, and to Michael Wright and Grant Young for building this site.

 Public Domain Day 2024 by Jennifer Jenkins, Director of Duke Law School’s Center for the Study of the Public Domain, is licensed under Creative Commons Attribution 4.0 License.

This website is not official legal advice. Instead, it is a summary of United States law relevant to the public domain and a guide to some of the works entering the public domain in 2024.

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