It’s 2024: you now own Steamboat Willie in the USA (but not Mickey Mouse)

Understandably, there is a lot of coverage this morning (1 January 2024) about Disney’s first Mickey Mouse cartoon, Steamboat Willie, falling into the public domain.

Let’s talk about that (and other works falling into the public domain in the USA today)…it’s not as simple as it might seem at first.

I’m not an intellectual property lawyer (or any other kind of lawyer)…just an interested layperson who has written quite a bit about copyright over the years. I’m going to give you my understanding, but I’d never bet the house on going up against The Mouse (Disney) without real legal advice. The Disney company is famously protective of its rights.

What is the public domain…why do I say you own Steamboat Willie in the USA? A work in the public domain is owned by the public: it is not owned exclusively (with some exceptions called “Fair Use” in the USA) by an individual or a company.

Note: this is limited by jurisdiction.

What is in the public domain in the USA may not be in the public domain in Mexico or Japan (for example)…or vice versa. Different countries can set different copyright terms…and they do. It varies considerably. Here is a list from Wikipedia:

List of countries’ copyright lengths at Wikipedia

It also varies by type of medium: a recording of a song (the recording of a performance by a band/singer) may have a different copyright term than the written song itself.

Note: this does not cover derivative works

I have readers in different parts of the world and readers who speak different languages. It’s important to note that a derivative work (one which Includes “aspects” or a previous work, but contains sufficient new content to qualify for protection itself) is not covered by this new public domain status for the original work.

For example, let’s say a book was first published in English in the USA in 1928 (those are generally falling into the public domain today in the USA), and a new licensed translation into Spanish was created and published in the USA in 1968. That new Spanish version could still be under copyright protection. Generally, these are going to involve a new significant creative effort: illustrations, an introduction, annotations, and so on. Even the order and selection of public domain short stories into an anthology might be protected, particularly if it was to meet an overall theme.

Note: there may be other rights involved

One place people could run into trouble is trademarks. A trademark basically allows a company which is putting out a particular type of product in a particular market to reserve the use of a term or image to identify it. You couldn’t create a car and call it a Mercedes, for example. You might be able to make a paper clip and call it a Mercedes if the car company hasn’t done anything in the office supplies market (I don’t know). Mickey Mouse is trademarked, even if Steamboat Willie isn’t copyright protected. That’s why you’ll see Steamboat Willie released with titles like “The most famous cartoon mouse in his first cartoon!”

There are also name, image, & likeness rights, and with the rise of generative artificial intelligence, I expect those rights to be strengthened. If you used an image from a now public domain movie to create an avatar of one of the actors in character that did different things from the movie, that could possibly run afoul of the estate. That shouldn’t affect you using the appearance in the original film.

Even with fictional characters, you might defame their characters. That’s a complicated one, but Disney went after Odds Bodkins cartoonist for a “Mickey Rat” character. If you took a clip of Mickey Mouse from Steamboat Willie and put it into a pornographic movie in a way that suggested Mickey was participating, it’s possible Disney could go after you for that.

Public performances may also have other rights involved.

Note: this does not apply to the physical copy of the work

This is probably obvious, but this doesn’t mean you own a DVD of Steamboat Willie being sold in a store…you can’t just take it. The movie on the DVD is in the public domain, but the physical DVD can still be owned by someone.

Bottom line on this: if a work is in the public domain, you should be able to distribute it as it was originally released. Using it in different ways may be iffier.

Duke Law does a good article every year on public domain, including listing some highlights. Here is this year’s:

Duke Law Public Domain Day 2024

Generally, movies & books first published/released in 1928 in the USA are now in the public domain in the USA. That’s also true of musical compositions, but not of sound recordings from that year. Sound recordings from 1923 are generally falling into the public domain.

Some notable books:

Lady Chatterley’s Lover
All Quiet on the Western Front
House at Pooh Corner (remember that this is the original book…not Disney adaptations of Tigger, for example)
The Giant Horse of Oz (part of the original series written by John R. Neill: other authors followed L. Frank Baum)

Some notable movies:

The Cameraman (Buster Keaton)
The Haunted House (Thelma Todd)
In Old Arizona
The Man Who Laughs
The Matinee Idol (Bessie Love)
Ramona (Dolores Del Rio)
We Faw Down (Laurel & Hardy)

Again, I’d check before doing anything with any of these! There will also be a number of film shorts.

One more thing: I’m going to link to what may be the most controversial article I have published, in which I explore the idea of making copyright permanent in exchange for greater Fair Use rights. I wrote it more than a decade ago, but you might find it interesting. Today’s article is clearly an argument against making copyright permanent.