This article identifies reasons behind why the original Mickey Mouse may not be protected by copyright after all. Menn notes that brand experts value Mickey Mouse today at $3 billion and that he has become the ultimate symbol of intellectual property. Menn also notes that film credits from the 1920’s reveal imprecision in copyright claims. Copyright questions apply to an older Mickey that had longer arms, smaller ears and a pointier nose. This entire notion of Mickey Mouse originally not being protected by copyright begins with Gregory Brown as Menn writes. It was Brown who was a former researcher for Disney who took over the Harvey Productions, home to Casper, who found the imprecision. He learned that Harvey failed to renew copyrights and learned that Disney failed to renew copyright claims on the 1931 short “The Mad Doctor” featuring Mickey Mouse. Brown decided to recreate animation cels but Disney sued and lost the case. However, Brown looked at the original “Steamboat Willie” and found that because three companies were listed without a clear copyright next to any of them, this nullified anyone’s claim. Although receiving some help from friends and people interested in the case, Brown’s appeal was dismissed because he missed a filing deadline. Menn quotes Meiseinger, the former general counsel who said, “everything has to fall into the public domain sometime”.
This article is important to my paper because it take a different look at how people try and put Mickey Mouse back into the public domain rather than arguing against the CTEA. One question that arises out of this article, is why is it so important that Mickey Mouse not be protected? This is a question that I raise in my paper and a question that has several answers to it.
This article explains the problems of converging such laws as copyrights laws and trademark laws in terms of defining whether or not characters can be protected by these laws. These characters can be protected because they take on a life of their own, however the extent of the protection is in question. With regard to copyright, copyright doctrines of the idea/expression dichotomy and fair use are of importance. Helfand writes, “owners and creators seek to wrap their fictional characters in a net of invulnerability- a net created through an artful interweaving of copyright, trademark and unfair competition laws”, and it is this protection which allows large corporations to profit off of characters. Helfand’s main argument is that the courts have merged its tests, reasoning and language used in determining infringement, in order to arrive at a single approach to recognizing character infringement rather than separating each approach. This he believes, if it goes unchecked, will “dilute the significance of a limited copyright term and hence make fewer characters available for ‘unauthorized’ expressive uses”. He goes on to express that the goals of trademark and unfair competition law no longer become used the way they were intended to be used and that it focuses it solely on whether or not characters are similar, or if a character’s reputation is harmed by the unauthorized use rather than looking at the likelihood of consumer confusion. With regard to Mickey Mouse, Helfand touches on the Walt Disney Productions vs. Air Pirates case, noting that Mickey Mouse is the story being told which called for the mingling of the elements of copyright infringement with trademark infringement because Mickey Mouse has “achieved a high degree of ‘recognition’ and ‘identification’”.
This article is important to my paper because it questions not the extension of the copyright act, which I have already touched on in other articles, but expresses the importance of keeping boundaries between different types of protection laws. If these laws continue to be merged and lack identifying main causes for such laws, then characters such as Mickey Mouse will continue to be protected in all ways which will continue to further it’s time spent under protection laws including copyright laws rather than entering the public domain. This argument is in opposition to my thesis and provides a different perspective.
Bob Levin’s article “Disney’s War Against the Counterculture” describes the case of Disney vs. O’Neill. Dan O’Neill, a cartoonist created two cartoons along with Ted Richards, Bobby London and Gary Hallgren. They called themselves the Air Pirates, after a group of evildoers who had bedeviled Mickey Mouse in the 1930’s. O’Neill has said that the purpose of creating the cartoons was to “buck corporate thinking. We just didn’t like bullshit”. The first cover was of Mickey Mouse piloting an airplane with two sacks in the plane labeled “Dope”. The second cover was of Mickey Mouse and Minnie Mouse on horseback being confronted by a man with a gun in one hand and a sack of “Dope” in the other hand. Lawyers on behalf of Disney brought suit against the Air Pirates, accusing them of copyright infringement, trademarked infringement, unfair competition, intentional interference with business and trade disparagement through the wrongful use of the characters. The court allowed a restraining order to bar the Air Pirates from any further production and later obtained an injunction. The defense tried to legitimize what they had done and called themselves parodists such as Shakespeare and said they were not trying to pass on their work as a Disney product. They also argued that characters cannot be copyrighted and that they were protected under the 1st Amendment. Judge Wollenberg decided in the favor of Disney citing that Mickey Mouse is a character that constitutes what is being told and that O’Neill admitted to copying Mickey exactly. The 9th Circuit upheld Wollenberg’s decision and the Supreme Court refused to hear the case.
This article and this case is important in understanding the importance of copyright in the case of Mickey Mouse. If Mickey Mouse were not protected under copyright, then O’Neill and the rest of Air Pirates would be able to do whatever they wanted with Mickey Mouse and whatever other characters are not protected by copyright law. If Mickey Mouse were in the public domain, then people would be able to harm the image of Mickey Mouse as O’Neill clearly did and tarnish a reputation that Walt Disney has put tremendous time and resources into upholding. Mickey Mouse and his stories target an innocent audience of children. The defaming images that O’Neill created showed Mickey in an unfavorable light and if the decision did not favor Disney, then Disney’s reputation as well as economic well being could have been damaged forever. My paper distinctly addressed the reasons behind why protecting Mickey Mouse is important rather than allowing him into the public domain.