I. ABSTRACT
This article delves into the complexities surrounding the legacy of copyrighted characters post their copyright expiration, with a focus on the iconic Mickey Mouse character from Disney's "Steamboat Willie" as it entered the public domain in 2024. The piece explores the legal and moral ramifications of such a transition, especially when the character becomes subject to controversial interpretations and uses, potentially affecting its long-established reputation. The article suggests exploring various legal and intellectual property strategies to protect the legacy of characters post-copyright expiration. It calls for a broader legal discourse on the intersection of economic and moral rights, and the role of other intellectual property rights in preserving the legacy of beloved characters, thus offering a comprehensive overview of the challenges and potential solutions in this evolving legal landscape.
II. THE MICKEY MOUSE “STEAMBOAT WILLIE” VERSION SITUATION
With the advent of the New Year 2024, the whole world witnessed the copyright of the first version of Disney’s iconic character, Mickey Mouse, from the movie “Steamboat Willie”, getting expired. The entry of Steamboat Willie’s version of Mickey Mouse in the public domain marked an end to Disney’s aggressive attempts to enforce its copyright. Disney was infamous for constant lobbying around the United States’ lawmakers with regards to seeking Copyright extension over it, ultimately leading to influence the famous US legislation, Copyright Term Extension Act, 1998, also known as the “Mickey Mouse Protection Act”. This development has sparked significant discussion about Disney's future with this iconic character, now that it has entered the public domain.[ii] On one end, the legacy of the revolutionary Mickey Mouse character is being rejoiced, while on the other end, as a retaliatory gesture to Disney’s strict enforcement of its copyright on the character, there has been a surge of AI-created and User-created content associating to a wide range of controversial interpretations of the character, now that the work is in the public domain. This situation may give rise to extensive legal discourse regarding the protection of the legacy of a work in the public domain post its copyright expiration. Furthermore, this is especially significant since the character, once closely associated with revolutionizing the G-rated content market of animation and cartoons, is now being related to R-rated material.[iii]
III. A BRIEF INTRODUCTION TO CHARACTER COPYRIGHTS
Character copyrights encompass the protection of fictional and real characters, including their essential personality features such as name, image, appearance, or voice. Fictional characters originate from various sources including literary works, strip cartoons, artistic works, and cinematographic works, serving primarily entertainment, promotional, advertising, and recognition functions. Real characters, typically from movies, show businesses, and sports, focus on their primary activities rather than uses.[iv]
Copyright protection for characters can arise automatically or through formal registration processes like trademarks or industrial designs. Copyright generally protects original creations without formalities, but in some countries, industrial exploitation intent can limit this protection. Literary works' characters are usually not protected separately unless they are distinct and well-known independently. Drawings or cartoons can receive independent protection if they meet copyright criteria, including graphic adaptations of existing characters. Three-dimensional works like sculptures and dolls, and audiovisual works including fictional characters, are also eligible for copyright protection if original.[v]
Real persons' merchandising is more complex in copyright terms, as the protection vests not in the person but in the creator of the work featuring the person's personality traits. Performers in audiovisual works have rights under specific conditions.
Legal precedents have affirmed the extensive scope of character copyrights, covering more than just physical appearance. Warner Bros., Inc. v. American Broadcasting Cos.[vi] emphasized considering the totality of a character's qualities in infringement cases. Similarly, in Detective Comics, Inc. v. Bruns Publications[vii], the court recognized the copyright of a character featured in competing publications. These cases highlight that unauthorized use of a character could lead to infringement, even if only the character and not the entire original work is used, especially if there's a likeness in depiction and personality traits.
IV. EXPIRATION OF A COPYRIGHT AND ITS IMPLICATIONS
To put it simply, the expiration of copyright occurs when the period of legal protection for a creative work concludes, allowing it to become part of the public domain. Copyright protection is temporary and, once it lapses, the work becomes publicly accessible. This transition to the public domain permits anyone to reproduce, share, or utilize the work, or portions of it, without needing prior permission.[viii]
The duration of copyright protection varies by region and type of work. Under the Berne Convention, the standard duration is until 50 years after the author's death, though there are exceptions.[ix] In the European Union, copyright generally lasts for 70 years after the author's death, or 70 years after the death of the last surviving author for jointly authored works.[x] In the United States, for works created after January 1, 1978, copyright extends through the author's life plus 70 years, with some exceptions.[xi] In India, copyright typically lasts for 60 years. For original literary, dramatic, musical, and artistic works, this 60-year period begins the year after the author's death. For cinematograph films, sound recordings, photographs, posthumous, anonymous, or pseudonymous publications, and works by the government or international organizations, the 60-year term starts from the date of publication.[xii]
The key implication of the expiry of copyright protection tenure is rooted from the very emergence of the character (work) in the public domain. The economic benefits derived from the usage of that character, be it in terms of works of cinema, art, literary work, etc., as well as the merchandise associated with that character, which was once restricted to only the author/franchisee who used to be entitled to the character’s rights, will now be shared among all the individuals or groups in the public who indulge in the creation of works fundamentally comprising the character in the public domain. Another major area of concern relates to the reputation or the legacy associated with the character. Appearance of the character in the public domain may lead to a vast number of people making controversial interpretations of the character, which will not only affect the business aspect of the original author/franchise’s operations but would also lead to causing harm to the key attributes associated with the character, affecting the legacy/impact of the character in years to come, in the eyes of its “once used to be” regular viewers/fans, as well as, in rare case scenarios, spraying mud on the author/franchise’s reputation and dignity. The infamous case of “Winnie the Pooh” can be taken as an example, in which, the jolly character who once used to enjoy the fandom of kids after having been cast into G-rated wholesome animated movies, is now been scared off, after having been cast in a Psychological Thriller/Horror movie, post its copyright expiration.[xiii] Similar speculations have been revolving around the Steamboat Willie version of Mickey Mouse as well.[xiv]
V. UNDERSTANDING THE AUTHOR’S RIGHT TO INTEGRITY ATTACHED WITH HIS WORK
In order to get into the discussion about preserving the legacy of the first version of Mickey Mouse, knowing how fundamental impact it left in the cartoon industry, an approach of “Author’s moral right to integrity” may be taken.
In the earlier days, Common Law Legal Systems only focussed upon the author’s economic interest in his creative work, which was, in essence, restricted to just the commercial aspects of the copyrighted work. With the emergence of continental jurists, a new aspect arose with regard to looking at and preserving the rights of the author/creator of the work.[xv] This concept arose from the view that the work of the author was an embodiment of the personality of the author, and hence, these rights came to be known as the moral rights of the author.[xvi] The moral rights of the author can be broadly categorised into two aspects: The Right to Attribution and The Right to Integrity. While the right to attribution specifically deals with the author’s right to assert his authorship of the work, the right to integrity is a broad right. It allows the author to refute a wide range of practices, such as editing, publishing, performance, and possibly exhibition - which may not be compatible with the intentions of the author. The Berne Convention, in its Article 6bis[xvii], upholds the validity of the existence of the right to integrity of the author. It deems this right to be an evidentiary burden on the author to discharge it satisfactorily. This provision also holds that the author’s rights ought to be protected after his death, “at least” until the expiration of his economic rights. It suggests that countries expand the tenure of the moral rights of the author as compared to the economic rights.
Talking in the aspect of the common-law legal system, the exception of the moral right of integrity of the authors for their copyrighted work has been criticised for weakening the provisions for the protection of the moral rights of the author post the author’s death, since, the protection of moral rights in a common-law system are generally accomplished by the tort of defamation, which generally can’t be exercised post the death of the individuals.[xviii] The aforementioned provision, thus, tends to restrict the protection of the author’s moral right to the integrity of his work only till during his lifetime, or, in consonance with the Berne Convention, till the expiry of the economic rights associated with the work.[xix]
In light of the present situation associated with the first version of the Mickey Mouse character, the phrase from Article 6bis[xx] of the Berne Convention stating that the right to integrity of an article should be protected “at least” until the expiration of his economic rights post his death, must be interpreted liberally and inclusively. This interpretation is essential for preserving the legacy of the “Steamboat Willie” version of Mickey Mouse, as well as its creator, Disney.
VI. CONCLUSION AND SUGGESTIONS
The aforementioned situation revolving around the very first version of the legendary Mickey Mouse character, presents a brilliant opportunity for an expansive legal discourse on a variety of agendas. These agendas include the importance of the character’s legacy (both in economic terms and morally, given its close association with its creator and its enduring popularity in the cartoon industry for almost a century), the intersection between the moral and legal relationship of the author with their work (i.e., character), protection of the character’s legacy post its copyright expiration in the public domain, and its intersection with other intellectual property rights. Few solutions in the present, apart from the inevitable legal discourse mentioned above, may include taking into consideration other IP rights attached to it, such as other copyrighted works complementary to it, or the work also being subject to being a registered trademark, etc. Our previous generations have already seen Mickey Mouse becoming a cult in the animation industry (not to sound repetitive). Now, with the advent of AI as well as simplified and easily accessible creative tools in the present, let us see yet another legal discourse around Mickey Mouse become a landmark case study of its own.
[i] The authors are students at the Maharashtra National Law University, Mumbai
[ii] Colin McCormick, Stephen Barker, and Clotilde Chinnici, Mickey Mouse’s Impending Copyright Expiration Explained (Screenrant, 12 January 2024) https://screenrant.com/mickey-mouse-copyright-expiration-explained/.
[iii] Kate Knibbs, Sex, Drugs, and AI Mickey Mouse (Wired, 2 January 2024) https://www.wired.com/story/mickey-mouse-steamboat-willie-public-domain-artificial-intelligence/.
[iv] Character Merchandising (WIPO 1994).
[v] Swetha M. and Hemlata R., Character Merchandise Under Copyright Law in India (2023) 11(4) IJCRT 171.
[vi] Warner Bros., Inc. v. American Broadcasting Cos., 222 U.S.P.Q. 101.
[vii] Comics, Inc. v. Bruns Publications., 111 F.2d 432.
[viii] Works in the Public Domain after Copyrights Legally Expire (JUSTIA), https://www.justia.com/intellectual-property/copyright/works-in-the-public-domain/.
[ix] Summary of the Berne Convention for the Protection of Literary and Artistic Works (1886) (WIPO) https://www.wipo.int/treaties/en/ip/berne/summary_berne.html.
[x] ‘Copyright’ (EU) https://europa.eu/youreurope/business/running-business/intellectual-property/copyright/index_en.htm#:~:text=In%20EU%20countries%2C%20copyright%20protects,a%20work%20of%20joint%20authorship.
[xi] How Long Does Copyright Protection Last, (US Copyright Office) https://www.copyright.gov/help/faq/faq-duration.html#:~:text=The%20term%20of%20copyright%20for,plus%20an%20additional%2070%20years.
[xii] A Handbook of Copyright Laws, DPIIT, Government of India https://copyright.gov.in/documents/handbook.html#:~:text=The%20general%20rule%20is%20that,the%20death%20of%20the%20author.
[xiii] Supra note 1.
[xiv] Supra note 2.
[xv] G Dworkin, The Moral Right of the Author: Moral Rights and the Common Law Countries (1995) 19 Colum-VLA JL & Arts 229.
[xvi] S Ricketson, The Law of Intellectual Property, LBC Melbourne, (1984).
[xvii] Berne Convention for the Protection of Literary and Artistic Works, 1886, art. 6bis (Paris Text 1971).
[xviii] Anand, The Concept of Moral Rights under Indian Copyright Law (1993) 27 Copyright World 35.
[xix] Mira T Sundara Rajan, Moral Rights in the Public Domain: Copyright Matters in the Works of Indian
National Poet C Subramania Bharati (2001) NUS SJLS 161.
[xx] Supra note 14.
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