A few weeks ago I wrote about whether fictional characters have a canon that survived the author. That got me to wondering: when the work of a corporation goes into the public domain, do the characters also go into the public domain?
This is even sort-of on topic for this web journal since instructional designers need to have a functional understanding of copyright law.
The way copyright law works is that authors of original works enjoy a period of commercial exclusivity during which only they can make copies. Then the work goes into the public domain and anyone can make a copy, change it, do whatever they want with it. It has been many years since any commercial works have entered the public domain, however, because of copyright extensions such as the Digital Millennium Copyright Act passed in the latter half of the twentieth century.
Conveniently, these extensions always seem to happen just before Steamboat Willie, Mickey Mouse’s debut, goes into the public domain. Steamboat Willie is due to enter the public domain in 2024. Assuming this happens, anyone will be free to make copies of this movie and share them. The question is, will the public then be free to make new works of art–comic books, movies, etc–starring Mickey Mouse?
This is an important question. Disney itself as a corporation gained expertise in storytelling by reinterpreting public domain stories and characters–Snow White, Pinocchio, Sleeping Beauty, and so on. Should future generations of artists have the same opportunity to reinterpret Mickey?
The difference between Snow White and Mickey Mouse is that no one owned a trademark on Snow White when Disney made their classic cartoon. Here’s an interesting article talking about the nexus of copyright and trademark and what might happen when Steamboat Willie enters the public domain. In short, Disney won’t be able to stop anyone from making copies of Steamboat Willie, but they may be able to keep artists from making original Mickey Mouse stories due to trademark law (unlike copyrights, trademarks can be renewed forever). Mickey’s identity is so entwined with Disney’s that future courts could well rule that it would be impossible for an artist to create a new Mickey Mouse work without confusing Disney’s consumers.
The article points to Winnie the Pooh, who will go into the public domain before Mickey, as an example of a character that Disney likely won’t be able to defend. Pooh not only had a long existence before Disney, but when people think of Disney, they think first of the mouse, not of the bear.
Of course, even if an artist is on the right side of copyright and trademark law, they will have to have the legal resources to defend themselves.
Superheroes only get a brief mention in the article, but this is a really interesting case. Will DC Comics have to choose between Superman and Batman, sort of like a football team choosing a franchise player, as the one that exemplifies the brand, or will they argue that DC’s brand is entwined with a large stable of superhero characters, that trademark protects them all even after Action Comics #1 and Detective Comics #1 go into the public domain? And if they successfully make that argument, shouldn’t Disney be entitled to protect all of its characters for similar reasons, including Pooh?
It seems likely that, given the track we are on, any fictional characters with any commercial viability will never go into the public domain.
That makes me sad. Our stories–the stories we share and pass down and evolve and reinterpret–are the defining features of our culture. Granting temporary commercial exclusivity to allow our most talented artists to focus on their craft is fine, but we appear to be motoring to a future where stories are simply commodities.