Welcome to the Public Domain

This week marks the start of the new year and—as with every new year—the lapsing of certain old copyrights into the public domain. Among others, this includes, finally, Mickey Mouse. No longer does Disney “own” the character (from a copyright perspective).

That means that I can use this image (the first ever public appearance of Mickey Mouse in the 1928 film Steamboat Willie) for any purpose:

There is some nuance here. Future iterations of Mickey Mouse (for instance, modern colorful versions with which you’re familiar)? Those are still protected. More recent films and shows and books that use the character? Those too. The trademark on the character? Not lapsed.

But the core concept, traceable back to that 1928 short? You can now use it for any purpose.

And some are already taking this to extremes. It took all of one day for indie horror filmmakers to announce their upcoming film Steamboat Willie, a movie in which a mouse named Mickey will terrorize passengers on a ferry. (The same thing happened last year after Winnie the Pooh’s copyright expired in 2022, resulting in the release of the universally panned horror film Winnie the Pooh: Blood and Honey.)

Divergent Timelines

I like to think of copyright issues in terms of divergent timelines a la Back to the Future 2. Picture a point in time representing the development of some new concept/character/story/etc:

Once that moment of creation has occurred, a timeline is created, one in which iteration and innovation on top of that thing becomes possible. Consider some of the most valuable IP ever created: Disney characters, Marvel characters, Star Wars, Pokémon, Harry Potter… Each stemmed from an original moment of creativity:

And yet, once the thing is out there, it triggers other creative acts as well. Consider the plethora of paranormal romances that emerged after Twilight, or the widespread investment in competing cinematic universes following the success of Marvel’s, or the many creative feats stemming from the popularity of The Hunger Games (of which Fortnite, a game, is arguably the most successful).

Each of these timelines thereby spawns other timelines of derivate works that branch off the original (i.e. are inspired by it):

This is where copyright law comes in. I like to think of copyright as trying to do two things to the red line above. It tries to either move it farther from the purple line (meaning, derivation is fine as long as it’s not too similar to the original work; in other words, a sufficiently large gap between the purple and red lines somehow legally qualifies as inspiration rather than rip-off). Or alternatively, copyright law tries to push off how much time can pass before those red lines start to branch off.

And that is precisely what happened with Mickey Mouse (as well as other known characters like Peter Pan who are now in the public domain as of January 1). Copyright law successfully pushed off derivative red lines from being created for a period of 95 years.

And while that is key to ensuring the protection of creative works and the livelihood of the artists that make them, there is also a negative take. Think of how many works would have been created in those intervening years had Disney not had full ownership over the concept of Mickey Mouse. Think of the economic impact of those 95 years being, say, 75 years or 50 years or 5 years, and the many alternative timelines that could have existed. (This would make Doc Brown’s head spin.)

Everything is Derivative

Looking back at the examples I cited earlier (the vampire romances, the superhero franchises, the battles royale), it’s easy to think of the mega hits (Twilight, Marvel, The Hunger Games) as points in time, sparks of innovation. But they’re far from it. Each of those examples exists on the backs of decades of other works (often forgotten). Even the mega hits are derivative.

Twilight came after The Vampire Diaries and Buffy the Vampire Slayer (both from the 90s). Marvel’s crossovers were hardly the first crossover films (more credit goes to monster films of the 50s, the Godzilla franchise, and even Kevin Smith’s Jay and Silent Bob movies 🙂). The Hunger Games is essentially a PG-13 version of Battle Royale, which itself is essentially an R-rated version of The Running Man meets Lord of the Flies.

And therein lies the irony of copyright law. It takes many dots to get to the point of a mega hit. Even Isaac Newton wrote in 1675, “If I have seen further it is by standing on the shoulders of giants.”

And yet, once a mega hit is created by chance, its success benefits from decades of legal protection in the form of copyright. One could argue that a rising tide lifts all boats, that all of the preceding “giants” on which the mega hit relied benefit from its growth. (After all, The Vampire Diaries only became a TV show after the Twilight phenomenon.)

Yet the sphere of protection applies disproportionately to the IP that achieves true success. The many corporate mice that inspired Walt Disney’s creation of Mickey Mouse were ironically disincentivized from iterating on their creations for fear of legal ramifications as well as consumer confusion. Poll one hundred people on the street and ask them what inspired what, Twilight or The Vampire Diaries, and I’m willing to bet nearly everyone will get the answer wrong.

There’s an interesting tie in to an article I wrote several weeks ago entitled The Faux First Mover Advantage. That article was about business innovation, but the same takeaway applies here:

“Consumers care little about the developments that led to their use of a particular product. Therefore, it’s the perception of being first that matters, not whether or not you actually were.”

The tragedy is this: All of those “giants” who created the works that inspired IP legends like Mickey Mouse and Peter Pan? They’re long gone. Copyright law is structured such that it lasts for longer than the lifetime of the creator… as well as the lifetimes of everyone on whom the creator relied.

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