Table of contents
In the last few days, all the media have echoed the most surprising news so far this year: Mickey Mouse, the iconic character of The Walt Disney Company (Disney), has entered the public domain. This news, which seems to be a transcendental event from the copyright point of view and which could mean a serious damage to the company, requires a practical view of what it really implies and thus weigh all the rights at stake. Therefore, we must take into account the following practical and legal issues.
- First of all, what does public domain mean?
We must bear in mind that intellectual property grants rights limited in time, which means that the exclusive rights that the author obtains over his work have a certain duration and, after that time, the work enters the public domain. When a work enters the public domain, it means that it can be exploited without the need for authorization from the rights holder, provided that the moral rights of the author are respected, as well as other rights at stake.
- Mickey Mouse's copyright has expired as it is a work whose country of origin is the United States.
Another issue to be clear about is that the rules determining the public domain are subject to the specific regulations of each country. Although there is a common framework provided by the Berne Convention for the Protection of Literary and Artistic Works, according to which all signatory states must respect, as a minimum, a term of 50 years after the death of the author for a work to enter the public domain.
One of the particularities in this regard is to be found in the United States, where several legislative changes have been made that have significantly extended the duration of copyrights -including the Copyright Term Extension Act of 1998, commonly known as the Mickey Mouse Protection Act, which extended the term of copyright for an additional 20 years-. In short, this Act established for Corporate-Authored Works a term of 95 years from publication or 120 years from creation, to be counted from January 1 of the following year.
In this regard, the starting date for the computation of the term is 1928, the year in which Disney released Steamboat Willie, an animated short film in which its iconic character Mickey Mouse appeared for the first time. Therefore, following the aforementioned parameters, the copyright of this version of the character has expired on January 1, 2024.
The public domain falls exclusively on the Mickey Mouse character that appears in the Steamboat Willie version.
It should be emphasized that the fall of the Mickey Mouse character's rights into the public domain in the United States refers only to the original depiction that appeared in Steamboat Willie in 1928 and not to subsequent versions of the character - for example, the image in the popular movie Fantasia or in the various Mickey Mouse Christmas specials.
But does the fall into public domain of the U.S. rights to Mickey Mouse from Steamboat Willie affect Europe or Spain?
Community law establishes a general term of copyright on a work of 70 years after the author's death. Spain, in turn, regulates in articles 26 et seq. of Royal Legislative Decree 1/1996, of April 12, 1996, approving the revised text of the Law on Intellectual Property (hereinafter, IPL) that the rights of a work shall last for the whole life of the author (or authors) and seventy years from the death or declaration of death of the author (or last surviving co-author).
Likewise, the LPI recognizes -in its Fourth Transitory Provision- a particularity for authors who died before 1987 and fixes the term of duration of the rights of the work at 80 years after the death of the author. This would mean that this exception would apply, since Walt Disney, one of the creators of Mickey Mouse, died in 1966.
However, the creator (or creators) of Mickey Mouse will not meet the subjective conditions required by the IPL to obtain these prerogatives. Specifically, Article 199 provides that in order for the temporary terms of the IPL to be applicable, we must be dealing with national or Community authors, with habitual residence in Spain or authors who have published in Spanish territory for the first time or within 30 days after they have been published in another country.
Furthermore, since there is no reciprocity treaty between Spain and the United States to equalize the rights of authors of one country and the other (article 199.3 SCA), the provisions of article 199.4 SCA will be applicable, i.e., the term of protection will be the same as that granted in the country of origin of the work, but in no case may it exceed the term provided for in the SCA.
Therefore, the copyright on the character Steamboat Willie created by Walt Disney in 1928 has also expired its protection in Spain. The same reasoning will apply in the rest of Europe and, foreseeably, in the rest of the countries of the world, since this is a requirement set forth in article 7.8 of the Berne Convention -i.e., the term shall not exceed the term fixed in the country of origin of the work-.
- However, what is the legal regime for works in the public domain?
As mentioned above, a work in the public domain means that any person may freely use the work or part of it, including the making of copies, modification, distribution or communication to the public, without the need to obtain the authorization of its creator, or pay any kind of royalty or fee.
Without prejudice to the foregoing, the consideration of public domain cannot cover any type of use of the work. The person who uses the work must at all times respect the moral rights of the author, paternity and integrity of the work -which remain in force after the death of the author and correspond to his heirs-. While the first requires the recognition of the status of author of the work to its creator, the second implies the author's right to prevent any deformation, modification or alteration of the work that would be prejudicial to his legitimate interests or detrimental to his reputation.
Similarly, the use of a work in the public domain could infringe other rights of third parties, such as the right to privacy and self-image, the unauthorized use of trademarks or, where appropriate, involve an act of unfair competition.
In short, we must be cautious with the apocalyptic preductions that instill the false belief of absolute freedom to use Mickey Mouse, since, as we have seen previously, we are faced with numerous limitations and rights that prevail in favor of Disney after the extinction of copyright on this character in the U.S.
Our lawyers specializing in copyright and intellectual property can help you with any questions. Contact them here.
Lawyer in the area of intellectual and industrial property.
Add new comment