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Is the Happiest Place on Earth About to Lose its Smiling Face?

Published onApr 15, 2022
Is the Happiest Place on Earth About to Lose its Smiling Face?

When it comes to Disney, branding is everything. But what happens if one of the most recognizable faces of one of the world’s most recognizable brands falls out of copyright protection and can be used by the masses?

The original version of Mickey Mouse, from the 1928 “Steamboat Willie” cartoon, will go out of U.S. copyright protection in 2024. That is, unless Disney successfully lobbies Congress to extend that protection, like it did in 1976 with the Copyright Act and in 1998 with the Copyright Term Extension Act.

Copyrighted materials are protected until 70 years after the author’s death. However, the 1998 Copyright Term Extension Act, also known as the Mickey Mouse Protection Act, protects “works for hire” until the earliest of either 95 years from the first publication date or 120 years after the creation date. The “Steamboat Willie” version of Mickey Mouse is considered a “work for hire.” The “work for hire” distinction means that a company or employer holds the copyright instead of the person that the company hired to complete the work. Practically, for Disney, the 1998 Copyright Term Extension Act’s extension of “work for hire” protection from 75 years to 95 years pushed back the expiration of Disney’s copyright in the original version of Mickey Mouse.

It is highly likely that Disney will attempt to lobby politicians to once again extend the copyright protection timeline, not only to protect this version of Mickey Mouse, but also to establish future protection of Disney’s hundreds of films and other character variations, such as Snow White and Cinderella. However, it is also possible that, given the political division in Congress on issues that seemingly shouldn’t be partisan—and the already significant movement of that copyright timeline—Disney could be unsuccessful in its attempt.

If unsuccessful in its lobbying efforts, Disney would still have a way to protect itself. Since only the “Steamboat Willie” cartoon version of Mickey is going out of copyright protection, every other version of Mickey Mouse that Disney has created since 1928 will still be protected on January 1, 2024. That also includes the version of Mickey Mouse we all know and love today. However, the company should continue to innovate and update Disney characters with each generation so that there is always a fresh and protected, but still recognizable, version at the forefront of the community’s mind.

Disney should also be strategically liberal in its lawsuits—both under trademark law and under derivative works.

While copyright protection expires, trademark protection does not. A trademark can include designs, phrases, and symbols, and it is “how customers recognize you in the marketplace and distinguish you from your competitors.” Disney has trademark protection for Mickey Mouse. Thus, Disney will still be able to sue under trademark law if people think they are buying from Disney instead of other companies or individuals if people start adapting the original version of Mickey Mouse and/or using it in new products after January 1, 2024. Cases, like Dastar Corp. v. Twentieth Century Fox Film Corp., help us infer that while Disney would not always win suits under a trademark law theory, Disney would have two important luxuries on its side during expensive lawsuits: a fighting chance and the financial resources to defend itself.

Under derivative works laws, individuals would be able, after January 1, 2024, to adapt the “Steamboat Willie” version of Mickey Mouse and earn copyright protection for their “additions, changes, or other new material appearing for the first time in the work.” However, individuals or companies who make a derivative work using the soon-to-be public domain version of Mickey Mouse would need to be exceptionally careful not to add anything, such as the classic white gloves, that could be considered to infringe on the copyright of any of the other Mickey Mouse versions. Disney carefully safeguards and enforces its intellectual property rights, and they will most likely sue if given a chance.

Of course, there is always the danger that another company or person will come along and offer either better quality or cheaper services while fully complying with all of the laws above, pulling consumers away from the Disney brand. But Disney has an incredibly strong brand recognition, and it is also branching out into different industries, including online streaming. Establishing Disney Plus may have been a mitigating factor in preparation for this and the many other copyright expirations Disney will face in the coming years. The Disney Plus platform pulls Disney’s works together and allows the consumer to pay one monthly fee for access to all of them. Disney is innovating, and that is something we will likely continue to see as we move through these unprecedented technological eras.

So is the happiest place on Earth really about to lose its smiling face? The answer is likely, no. However, the “happiest place on earth” may lose its monopoly over just one version of its smiling face while the smiling face we all know and love will still be protected, at least for now.

Haley Sink is a second-year law student at Wake Forest University School of Law. She holds a Bachelor of Science in Economics with a secondary major in Political Science with a concentration in Finance from Duke University. She additionally holds a Masters of Management Studies from the Fuqua School of Business at Duke University. Upon graduation, she intends to practice transactional law.

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