The first version of Disney's most classic character, Mickey Mouse, brought to public on October 1, 1928 in the short Steamboat Willie, is expected to enter into the public domain in the United States in 2024. What does this event mean in practice? To answer the question, we need to look at some points, starting with the history of the protection of intellectual property rights in the United States and this character.
In 1790, the year of the promulgation of the first U.S. copyright legislation, the term of protection was 14 years from the elaboration of the work.[1] Several subsequent legislative changes extended the protection period, especially from the 1960s onwards, as shown in the following graph:
The last change in U.S. copyright legislation occurred in 1998, with the Sonny Bono Copyright Term Extension Act, popularly known as Mickey Mouse Protection Act, given Disney's strong support for the project.
The law extended the period of protection of a work created on or after January 1, 1978. As a rule, the end of protection passed to 70 years after the death of the author. In the case of anonymous, pseudonyms or custom-made works, the protection period was extended to 95 years from the year of first publication or 120 years from the year of creation, whichever expires first.
The first version of the character Mickey Mouse was created co-authored by Walt Disney, who died in 1966, and Ub Iwerks, who died in 1971. The publication took place in 1928 and had its registration renewed. Considering that, the copyright protection ends after 95 years, i.e. in 2023. Thus, from January 1, 2024, in principle, anyone will be able to use this version of the character without violating Disney's copyright.
However, as pointed out by specialists in the legislation in question, the public's use of the first version of the character is not unrestricted. Disney maintains the protection of such version of the character, as well as newer versions, as a trademark. This protection can be presented to prevent or limit certain uses of the character, such such as selling merchandise in which the character is depicted. In this case, it could be suggested that the merchandise is a product produced or licensed by Disney.
Other Disney characters have already entered into the public domain in the United States earlier this year, such as Winnie-the-Pooh (Puff Bear), Piglet and Bambi. The loss of Disney's exclusivity over these characters has already resulted in a film production made by a third party, not yet published.
Considering that it is possible to compare the main character with Puff Bear, it is observed in the production trailer that the context in which it is inserted, as well as its countenance at times, distances the work from traditional Disney cinematographic productions, as it is associated with the horror genre. This was one of the strategies for using the character in the public domain without violating Disney's trademark.
But how does Brazilian legislation work? Are these and other characters in the public domain (in the United States or other countries) also in the public domain here?
In Brazil, copyright is regulated by the Federal Law 9,610/98 (Copyright Law). Article 41 of that law states that, in general, the author's patrimonial rights last for 70 years, from January 1st of the year following the author's death. After this period, the work falls into the public domain and is returned to the community so that everyone can use it freely, free of charge, respecting only its integrity and the author's credit.
For Disney characters in the public domain (as well as any works previously protected by copyright in the same situation) to be used free of charge in Brazil, some points must be considered.
Firstly, the minimum period of protection for a foreign work to be considered in the public domain is 50 years from January 1 of the year following the death of the author of the work, as established in Article 7 of the Berne Convention for the Protection of Literary and Artistic Works, of which Brazil is a signatory, and dated September 9, 1886. This term applies even if the country of origin of the author or work establishes a shorter term of protection.
Secondly, Articles 7 and 8 of the Berne Convention provide that the duration of the protection shall be governed by the law of the country in which the protection is claimed and may not exceed the duration established in the country of origin of the work, unless there is an internal legal provision in contrary.
According to the legal text of Article 2 of the Copyright Law, Brazil undertakes to grant foreign works the same legal protection assigned to Brazilian works, provided there is reciprocity, that is, provided that Brazilian works are protected in foreign countries under their own laws.
This means that, in Brazil, Brazilian and foreign works are protected for the same period, that is, 70 years from January 1st following the year of the author's death.[1]
In the case of the first version of the character Mickey Mouse, therefore, Brazil grants copyright holders exclusivity in the economic exploitation of the works for 70 years from January 1 of the year following the author's death.
As the United States confers the same right for 95 years, counted from the date of the first publication of the work, this means that the first version of the Mickey Mouse character will fall into the public domain in the United States before falling in Brazil. Here, as it is a work carried out in co-authorship, it will obtain this status only in 2042 – since, according to Article 42 of the Copyright Act, the term is counted from the death of the last of the surviving co-authors (in this case, Ub Iwerks, who died in 1971).
As seen, the entry of copyright in the public domain must be analyzed in accordance with the legislation of each country. Therefore, it is up to those who intend to use illustrations, literary works, and other intellectual works, freely and free of charge, to verify whether these creations are in the public domain, according to the legislation of the country in which they are intended to be used.
[1] BRANCO, Sergio. The Public Domain in Brazilian Copyright Law, 2011, p. 153.
[1] 1790 Copyright Act
