Unlocking Public Domain: Mickey’s Future After Winnie The Pooh’s Legacy Of Blood And Honey

5th March, 2024 - 7:29 am Categories: News & Updates 0 Comments

Introduction

Once upon a time there lived a princess named Cinderella, once radiant in beauty in her voice, her walk, beauty all around her. She met a prince fell in love, got married and lived happily ever after. Till 2046. But why till 2046?  Because the shield (Copyright) protecting her ended and now she is a deadly princess with a dirt torn gown and glass slipper on her hand to kill her beloved husband because she is a ghost now. This is what a Public can do to you and indeed did to our childhood friend Winnie the Pooh. Public Domain is the stage when the work is no longer protected by any Intellectual Property Rights and the public is free to use it without any limitation. The stage has its own pros and cons attached to it. Through this article the author has specifically focus on what effect the Public Domain can have on the “work” protected under Copyright Act.

Objective

• To study the meaning of Public Domain in the context of Copyright Protection and related basic concept.
• To understand the different pros and cons of Public Domain with the help of relevant happening and judgments.

CHAPTER I: WHAT IS PUBLIC DOMAIN IN COPYRIGHT?

When any work is protected by copyrights, the author or/and the owner have certain bundle of rights including, inter alia, right of reproduction, communication to the public, translation and adaptation.[1] These rights are subject to certain restriction and variation depending on the work. Once the work loses its protection and falls under the realm of public, it is known as “public domain.” Now there is no recognized owner but the public owns these work and are free to use it without anyone’s permission.[2]

This holds great potential benefits for the general public, providing unrestricted access to these works, and for creative artists seeking to perform, adapt, replicate, or use it any other ways. However, for owners of certain copyrighted materials, their entry into the public domain signifies a substantial loss in revenue, impacting industries such as book publishing, movie production, and maybe more importantly, the Walt Disney Corporation.

The common ways in which this happens is when the period of copyright term expires, or if creator fails to comply with legal formalities, or author themselves announce the work to fall into Public Domain. It is noteworthy to understand that the “publicly available content” is different than “public domain content.” [3]The term ‘Public Domain’ is not itself mentioned in the statue, however, the concept has existed since time immemorial.

Is Public Domain Universal or Territorially Restricted?

The concept of PD exists globally, but it varies somewhat from nation to nation and it is not universally standardized. There exist international agreements which lays down minimum standard frameworks such as Berne Convention’s minimum duration of life of the author plus fifty years. But their implementation can vary, shaping the scope of the public domain. Additionally, moral rights and exceptions like “fair use” differ among countries, impacting the applicability of public domain status.[4] For example, Ian Fleming’s famous work on James Bonds are in the public domain in Canada and South Africa, but not in US or Britain. This is because the variation in duration of copyright protection.

CHAPTER II: EFFECT OF PUBLIC DOMAIN?

The president of the Motion Picture Association of America, Jack Valenti, once termed the work in PD as “orphans,” that left without parents they are vulnerable to potential mistreatment or abuse.[5]

Is Public Domain Bad?

Discerning critics who stand for the extension of copyright duration have certain hypothesis and theories ready with them. They argue that bad things happens once work enter the Public Domain. These hypothesis are categorized in majorly three arguments. Firstly, the availability of work to consumers becomes very less when it enter the realm of Public domain (The Under-exploitation Hypothesis); secondly, the common ownership decreases the work’s value to others (The overuse Hypothesis); finally, the fear that the work lose their value due to the misuse and not overuse (The misuse hypothesis.) [6]

[Image Sources: Shutterstock]

The last hypothesis is the most prominent fear expressed by the owners of copyright work that wrong use will diminish the value of work and consequently its economic value. Dennis Kajarala, in his work used a phrase to describe what he claims is lacking when a work enter into the public domain: “proper husbandry by the copyright owner.”[7] One of the most common concern he expresses is the unauthorized pornographic use of the subject. For example, if audience is exposed to a pornographic film starring Mickey Mouse or Tinker bell, it becomes more obvious that they might tend to avoid and dislike the original version. Generating the original work in poor quality could also undermine the people’s view of value of the drama and reputation of the author.

In a empirical study done by the author on audiobooks, they found that the all three arguments in favor of extension of copyright duration because of the exploitation of work are unsupported. It suggests that there is little reason to fear that the value of the work will reduce once it enter the public domain.

Is Public Domain Good?

WAIT! There’s exist another Cinderella, still beautiful, I would say prettier and more independent because a beautiful human made her so. This Cinderella even inspire other women to step up in their life. This implies that while the creation of some kinds of derivative work will decrease the value and harm social welfare, there can exist another derivative work which will be more valuable than the original and increase the social welfare. (Middleton, 2016)

While the imperative objective of copyright protection is to protect the author’s right, it is noteworthy that work in public domain comes with its own array of benefits including accessibility for research and education purpose, encourage creativity, foundation for open innovation, economic benefits to other small industries, public welfare and many more. For instance, the critics of fan fiction fear online narratives might harm copyrighted characters, a data finds no proof of diminished value. Fan fiction seems unlikely to negatively impact the intrinsic worth of the original characters, such concerns about web-based storytelling hurting their value may be unfounded. Instead it gives positive impact by promoting and enhancing the eagerness of enthusiastic fans. It is like one work inspire another and increase the respect of original work.

CHAPTER III: IS MICKEY NEXT POOH?

Mickey Mouse, everyone’s favorite cartoon icon, has been protected by copyright for an incredibly long time. Initially, the copyright for his first appearance in “Steamboat Willie” (1928) was set to expire in 1984, under a 56-year protection period. However, Disney wasn’t ready to share Mickey with the world just yet. Through lobbying efforts, they successfully extended the copyright protection to “life of the author plus 50 years,” which meant Mickey remained under wraps until 2003[8].

But Disney wasn’t finished there. More lobbying, this time with the help of musician-turned-politician Sonny Bono, resulted in another extension to “life of the author plus 70 years,” or 95 years for corporate works like “Steamboat Willie.” This pushed the expiration date to 2023, with public domain entry finally happening in 2024.

As 2024 dawns, the copyright clock ticks of the steamboat wiley mickey, a shiver runs down the spines of many: Imagine “nightmare before Christmas” meets in Mickey’s clubhouse. Will Mickey Mouse, like Winnie-the-Pooh, will have the similar scary fate by falling into the public domain? The answer, much like copyright law itself, isn’t entirely black and white.

The aspect of moral rights[10] of any author could protect the distortion or variation of the character, since it may create confusion in the general public’s trust in character and undermine the author’s reputation. However, even then public domain opens a space for public to showcase their creativity. Thus, unlike economic right holder, the author cannot simply stop a new work from being created.

Good for Mickey that, unlike Pooh, only the Steamboat Willie (Mickey’s 1928 debut) enters the public domain for that specific portrayal. The iconic yellow-gloved Mickey and his modern iteration remain firmly under Disney’s trademark protection.[12] Think of it as losing the rights to an old black and white photo, but having the right to keep the meticulously curated family album. However, this does not erase the potential perils of the public domain. Unapproved merchandise, disrespectful adaptations, and even exploitative portrayals could tarnish the mickey’s legacy.

Conclusion

The public domain, while encouraging creativity, poses a potential threat to the integrity of cherished works like Mickey Mouse. Striking a balance between artistic freedoms and appreciating the original version is essential. Creators and consumers also must exercise accountability in interpreting and adapting these characters. Ultimately, Mickey’s fate reflects a broader question: can we leverage creative freedom to preserve and evolve cultural icons, ensuring their stories endure as testaments to our collective imagination? The answer lies not in legal frameworks but in our reliable engagement with these artistic works. Will we embrace Mickey’s legacy responsibly, or simply allow it to fade into an echo? The choice, rests with us.

Author: Nikita Sinha, A Student at, Hidayatullah National Law University, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

BIBLOGRAPHY

• “Stim, R. (2021, November 25). Welcome to the public domain. Stanford Copyright and Fair Use Center. https://fairuse.stanford.edu/overview/public-domain/welcome/#:~:text=The%20term%20%E2%80%9Cpublic%20domain%E2%80%9D%20refers,one%20can%20ever%20own%20it.”
• Brandon, E. M. (2024, January 5). What you can and can’t do with Mickey Mouse now. Fast Company. https://www.fastcompany.com/91005408/what-you-can-and-cant-do-with-mickey-mouse-now-that-its-in-the-public-domain
• Middleton, T. (2016, July 2). Do bad things happen when works enter the Public Domain? Open Knowledge Foundation Blog. https://blog.okfn.org/2012/10/08/do-bad-things-happen-when-works-enter-the-public-domain/#:~:text=Three%20main%20arguments%20are%20advanced,tarnished%2C%20by%20being%20reproduced%20in

[1] In India, Copyright Act, 1957 §14 provides for exclusive rights of copyright owner.

[2] Stim, R. (2021, November 25). Welcome to the public domain. Stanford Copyright and Fair Use Center.

[3] https://www.mondaq.com/india/copyright/1158096/works-in-public-domain-when-copyright-expires-an-overview

[4] www.wipo.int, https://www.wipo.int/edocs/mdocs/mdocs/en/cdip_7/cdip_7_inf_2.doc#:~:text=The%20WIPO%20Development%20Agenda%20also,rich%20and%20accessible%20public%20domain%E2%80%9D.

[5] “Buccafusco, C., & Heald, P. J. (2012). Do bad things happen when works enter the public domain?: Empirical Tests of Copyright Term Extension. Social Science Research Network. https://doi.org/10.2139/ssrn.2130008.”

[6] Id.

[7] “Dennis Karjala, Harry Potter, Tanya Grotter, and the Copyright Derivative Work, 38 ARIZ. ST. L. REV. 17, 35-36 (2006).”

[8] “Mickey, Disney, and the Public Domain: a 95-year Love Triangle. (n.d.). Duke University School of Law. https://web.law.duke.edu/cspd/mickey/”

[9] Source, https://m.imdb.com/news/ni64383677/

[10] In India, recognized under §57 of Indian Copyright Act, 1957.

[11] Source, https://insidethemagic.net/2024/01/mickey-mouse-horror-projects-shot-down-by-winnie-the-pooh-horror-director-steamboat-willie-walt-disney-blood-and-honey-jh1/.

[12] Brandon, E. M. (2024, January 5). What you can and can’t do with Mickey Mouse now. Fast Company. https://www.fastcompany.com/91005408/what-you-can-and-cant-do-with-mickey-mouse-now-that-its-in-the-public-domain