��������Ƶ

By Joe Arney

Mickey Mouse has had a very busy start to the new year.

Around the internet, content creators have been using generative artificial intelligence tools to have Mickey rig elections, do drugs, shoot guns, get crucified and more. It’s all because as of Jan. 1, the character—at least, its earliest iteration, featured in the 1928 Steamboat Willie short—finally entered the public domain under U.S. copyright law. 

So far, there hasn’t been a squeak from Disney or its lawyers about how Mickey is being portrayed online. But an expert from the University of Colorado Boulder said she doesn’t expect that to last.

“We are going to see some tests at the boundaries of copyright and trademark law that have not been tested at this level before,” said Casey Fiesler, an associate professor of information science at ��������Ƶ Boulder’s College of Media, Communication and Information. “It is almost a certainty that people are going to do things with Mickey Mouse that would be considered trademark infringement.”

Take A.A. Milnes’ Winnie the Pooh, which entered the U.S. public domain in 2022. Just a year later, the slasher flick Winnie the Pooh: Blood and Honey was out in theaters. And while the movie didn’t draw any legal action, when it comes to corporate iconography, Pooh is no Mickey.

“Mickey Mouse is probably the most trademark-relevant thing to go into the public domain, with respect to copyright,” Fiesler said. “There’s not a lot of modern stuff in the public domain yet—I mean, we’re only just now getting things from 1928—so that intersection between trademark and copyright has not been strongly tested.” 

Copy that

“In the early 2000s, I wrote a lot of Harry Potter and Star Trek fan fiction,” Fiesler said. “And fan fiction, and fan fiction communities, were a reason I became interested in studying online communities.” 

That interest continued to grow in law school and in her doctoral work, including her dissertation, which focused on the role of copyrights in digital creative communities. That gives her unique expertise on where creativity, copyright law and trademarks meet.

Typically, a copyright signals a creative work, like a movie or song. A trademark signals that a good or service is coming from or associated with a particular brand. So even if the early Mickey portrayed in Steamboat Willie is no longer copyrighted, Mickey is still trademarked as a brand identifier for Disney. 

Where it gets thorny, Fiesler said, is that Disney, following a successful lobbying effort to extend copyright protection, seems to have geared up to claim strong trademark protections. They even added a clip from the Steamboat Willie short to its Disney Animations production logo. Critics have wondered if Disney plans to overreach in claiming trademark infringement for activities that should be allowed for a copyright-free Mickey. 

If they try, they may run into problems. In a 2003 decision, the Supreme Court ruled companies can’t shield expiring copyrights or patents under trademark law in what it warned would otherwise “create a species of mutant copyright law that limits the public’s federal right to copy and to use expired copyrights.”

And it only gets more complex as you go. Take the Star Wars franchise. The first film came out in 1977, so its copyright is protected for 95 years. But The Empire Strikes Back came out after the 1978 revision to the law that extended the term to the life of its author and 70 years after his or her death. 

This doesn’t apply to corporate ownership and works for hire, but the works of any individual authors who are still currently alive will likely not enter the public domain in our lifetimes.

“I mean, I’ll be dead when Star Wars enters the public domain,” Fiesler said, laughing. “But this is going to get really complicated when copyright depends on when certain people die. I think the courts are going to be very interested in this for a very long time.”

That interest will be partly driven by A.I., which has given creators new tools to reimagine established universes, many of which—Batman, James Bond, Popeye, Superman and others—will enter the public domain in the next decade.

‘Blood and Honey’ and A.I.

If Mickey’s first forays into the hands of Dall-E are any indicator, expect some odd behavior.

“People are going to make things that other people don’t like, but copyright law isn’t concerned with whether something is good art,” Fiesler said. “Someone commented on one of my social media posts to the effect that they would find it distasteful to see people do to Mickey what they did with Winnie the Pooh. But there are a lot of people who find it distasteful that Disney made a cutesy cartoon out of The Hunchback of Notre Dame.”

Fiesler often calls generative A.I. “a bundle of tropes” because while it’s good at creating storylines for mashed-together franchises—such as what might happen if Sherlock Holmes wound up aboard the starship Enterprise—the plotlines it creates are predictable by nature “because it’s trying to give you what’s expected,” she said. 

Franchise mashups or illustrations of Mickey storming the U.S. Capitol Building may sound like a very different kind of creativity than what we’re used to. But, as Fiesler pointed out, “Disney’s most famous works were not original ideas,” with Snow White, Cinderella, Rapunzel, the Little Mermaid and others being lifted from the public domain. 

“So the creativity question is interesting, but if you’re going to say that artists just want to steal other peoples’ work—well, I hope you understand that all of that applies tenfold to Disney.”