The well-known character loses its trademark and is already being used in the horror genre. Is it legal to do so?
On January 1st, 2024, Mickey Mouse officially entered the public domain. Or rather the first version of the character: the one we see at the helm of a boat in the short film Steamboat Willie, his first film appearence. It’s been 95 years since he was trademarked, and under US law, copyright no longer applies after that period.
It didn’t take long for people to get their heads around it and exploit the potential. In the course of the week, news of various upcoming releases was shared: a movie, Mickey’s Mouse Trap, starring the character as a serial killer, and Infestation: Origins, a horror game about a vermin infestation —only the mice are a big bigger than you would think.
It seems hard to believe that Disney, a company with infinite power and resources, could let independent artists use their most recognizable character in such gory contexts and get away with it. These little creators do have the right. But there are a few conditions.
“A particular source can be a trademark for something. The key limit on that is that it’s always a trademark for something. Apple is a trademark for computers, not for apples, nor apple-flavored candy”, explains Rebecca Tushnet, professor at Harvard Law School and intellectual property law expert. According to the legislation, Disney cannot trademark walking mice, only the specific image of Mickey Mouse. In this case, the black-and-white version that appears in Steamboat Willie.
However, the trademark could be extended if users try to use elements that resemble later versions of Mickey. “Disney could say that it is too close to their trademark and would have a better argument”, the professor points out.
What is copyright for?
When interrogated about the 95-year limit, Tushnet clarifies that “copyright has always been designed to be limited in term. It’s just excessively long.” She follows by telling us that the concept of intellectual property exists to encourage people to create new works, but that you don’t need it to last forever to achieve that function. “Most of copyright’s existence terms used to be much shorter: 14, 28 years, or even the lifetime of the artist. We have just recently elongated those values.”
Artistry aside, the steady stream of income that can be generated by a trademark is a welcome bonus for many creators. Only, Tushnet brings nuance: “Most works only make money in their first few years of existence.”
Besides encouraging creativity and providing financial support, the expert finds a third purpose. “A trademark should be about deception. A label that prevents consumers from being tricked into getting something that they wouldn’t have gotten if they knew who they were getting it from.” When we buy a T-shirt with the image of Mickey Mouse on it, we know it really is that character and not a bootleg version of it. As consumers, we get what we were searching for.
As for the future of the beloved characters, Rebecca Tushnet raises no alarms. “In the US, the version of Santa Claus that people know today used to be copyrighted work. Now, there are different versions of Santa, and everything seems fine.”
CREDITS: Text by Malena Cortizo A.