Taking the Mickey
Go ahead, you can now it’s 2024. It’s safe. And I mean take the Mickey, Mickey Mouse. What else. His image is ‘out of copyright’ as they say in the world of intellectual property. Meaning, you can use the image, within reason.
So, your sales of hipster artisan sourdough bread are flagging. Time to stroke your lightly oiled beard and do a bit of ‘Blue Sky’. What if I had a funky new logo? What if I used Mickey Mouse on the recyclable, sustainably sourced, ‘Flipper’-friendly packaging? That should shift a few cobs. Well, hang on there, just a minute. Free use of Mickey might not stretch quite that far.
Here’s why.
I’m all ears!
God bless them! Disney have tried over the years, via legal means, to delay the day they finally wave off Steamboat Willie from the shores of cartoon-land – for it is that 1928 monochrome image of Mickey Mouse now up for grabs – rather than the yellow-shoed, red hotpants wearing friend of Pluto we grew up with. I sense your disappointment. Imagine how crushed is our bread peddler.
Still, it’s an historic day. Probably why mainstream media picked it up and just as quickly put it back down once the IP bit became a conceptual struggle for viewers and readers despite the expert ‘explainers’ it employed to ‘lift’ the story. Let’s crunch some numbers.
Arithmetic is being able to count up to twenty without taking off your shoes
Originally, Mickey was due out of copyright in the US in 1984. But, in 1976, the law was changed to allow owners to retain copyright protection for the duration of the life of the author plus 50 years. In 1998, Disney (and others) lobbied for additional change to the law and further extension – The 1998 Copyright Extension Act. They were successful. The Act became known, in Congressional circles, as The Mickey Mouse Protection Act. Protection was extended by 20 years and to last the life of the author plus 70 years up to a maximum of 95 years. On the 1st of January this year all the extensions and copyright protections lapsed. On Steamboat Willie Mickey that is. No more red-tape ruses to delay the day.
It’s worth reminding ourselves why, in the free world, we have copyright in the first place? It’s to allow and frame a reasonable period within which the creator can exploit their ideas and endeavours for profit. A good, old-fashioned chance to cash in with would-be competitors and copyists held, legally, at arms’ length. This ability to exploit being balanced against allowing access to older works to inspire and develop future creativity. How noble. You may or may not agree with it, but that’s broadly the principle behind copyright protection laws.
Our hippy baker isn’t off the lead yet with his Mickey Mouse logo wheeze. Not by some way. We haven’t looked at Trademark protection yet.
Oh boy! Sounds like we’ve got a visitor!
Trademarks are a different area of IP law. Best to say hello and walk towards their existence because the Mickey Mouse image is tattooed with such marks. And, they don’t have an automatic expiry date. They are designed to protect the trademark holder against customer confusion. Sourdough bread could be mistaken for a Disney manufactured, licensed, or endorsed product – don’t you know. See the problem.
To reinforce the trademark, perhaps sensibly if you’re Disney, they have been using the Steamboat Willie Mickey in the opening credits, to all Disney film Productions since 2006. This creates a strong logo motif and strengthens IP ownership. Clever.
What shape is this hole?
We know Disney is protectively and proactively litigious. In 2007 it prevented a stonemason from carving Winnie the Pooh on a child’s gravestone, it sued a primary school for an unauthorised viewing of The Lion King and the Academy Awards for a similar ‘offence’ in respect of Snow White.
History helpfully suggests what limited use might be permitted for the spindly-legged Steamboat Willie Mickey.
When Winnie the Pooh came out of copyright (see Opus Pooh Corner November 2022) the public were quickly treated to a horror version of Pooh bear in Winnie the Pooh: Blood and Honey. We are informed a sequel will follow later this year. Look forward to that from behind the sofa.
All you need is a little bit of magic
Where does all this leave our entrepreneurial bread maker? Selling ‘wounded’, slashed, strawberry jam weeping sour-doughnuts, mutilated by a berserk, axe-wielding Mickey? Might catch on. Some words of encouragement from Aaron J. Moss at Greenberg Glusker IP specialist lawyers in L.A.:
“They [Disney] won’t be able to go after everyone…battle lines will have to be drawn…”
Hmmm… good luck taking on (what The Guardian recently described as):
“…one of the most recognizable cultural symbols of America”.
A Minnie Mouse craft coffee perhaps? No corporate brand protection to worry about in that sector. She was on that steamer too. Her almost entirely looked-over concurrent escape into the public domain nearly 100 years later, is quite another story. The more things change…
Murray Fairclough
Development Underwriter
OPUS Underwriting Limited
+44 (0) 780 145 9940
underwriting@opusunderwriting.com
