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Taken from deseret.com | Author: Hanna Seariac | Date: 22 February 2023
The reality of Disney characters entering the public domain is complicated
When the beloved childhood bear Winnie-the-Pooh entered the public domain, a shocking and risque horror film, “Blood and Honey,” was announced. Some felt that this nearly century-old bear synonymous with nighttime bed stories was tainted by the creation of film.
Nevertheless, the film hit the big screen as the most horrific debut of the bear.
Astute observers might notice that Winnie-the-Pooh in this dark film is without the iconic red shirt. Well, that’s because Disney’s licensed character has the red shirt while writer A.A. Milne’s doesn’t. In other words, even though Winnie-the-Pooh entered the public domain, that doesn’t mean there’s a free-for-all on using the beloved bear.
As Mickey Mouse is slated to enter the public domain in 2024, I wanted to do a closer look at what it means for a depiction of the character to enter the public domain. This isn’t legal advice on precisely whether or not you can use public domain characters. Instead, it’s a general overview.
Lets’ start with the most iconic character of them all — Mickey Mouse.
Will Mickey Mouse enter public domain?
Mickey Mouse is expected to enter public domain in 2024, but the reality of what that’ll look like is a little more complicated than that.
First, let’s talk about Mickey Mouse’s first appearance — Steamboat Willie. Well, first appearance in a distributed film, at least. The iconic anthromorphic mouse had appeared in two earlier productions, but neither have the status of first distributed film.
Previously, the Deseret News reported that the 1928 version of Mickey Mouse will enter public domain in 2024. Disney has already made the short available on YouTube. Even though the copyright has expired, Disney has trademarked Mickey Mouse. This means that use of Steamboat Willie’s Mickey Mouse cannot borrow from later versions of the mouse and also cannot be repurposed in a way that could easily be confused with Disney.
It’s unclear where Disney will draw legal lines around Mickey Mouse, especially since Mickey Mouse is so visually synonymous with Disney.
But this distinction between trademark and copyright can provide something in the way of an explanation as to why the Jagged Edge production may have been able to use Winnie-the-Pooh in a horror film.
Disney isn’t exactly known for its horror films and the character didn’t have later features such as the red shirt.
In other words, Winnie-the-Pooh was transformed outside of his original context. In the company’s trademark of the beloved bear, they have a trademark registration for him in “motion picture films in the nature of adventure and comedy.” According to NSU Florida’s copyright explainer, trademark complicates characters being in the public domain because characters are registered for particular scenarios (i.e. Winnie-the-Pooh being trademarked for motion picture films).
The trademark protects even public domain characters from being used in a way that would be too close to Disney — only Milne’s Winnie-the-Pooh is public domain in the first place. Other characters from Hundred Acre Woods are not yet public domain.
So the long and short of it is that while the 1928 Mickey Mouse will enter public domain, the mouse is still trademarked.
Cinderella, Snow White and other princesses in the public domain
Let’s take a step back to the Brothers Grimm.
The Brothers Grimm were storytellers who compiled different fairy tales. Fairy tales and legends were practically part of the atmosphere during the 19th century. Among the stories they told in their famous fairy tale collection were Cinderella, Snow White, Rapunzel and other stories that inspired Disney.
Stories of Cinderella and these other princesses are in the public domain with a major caveat — it depends on the iteration of the story and Disney’s Cinderella et al. are trademarked. Let’s break this down into practical terms.
Cinderella’s story from the Brothers Grimm is public domain along with Snow White’s story, Rapunzel’s story and so on and so forth. Brothers Grimm published first in 1812, meaning that the copyright has been expired for a while now, but later depictions of these princesses may still be copyrighted in several cases and there’s also the trademark to keep in mind. For example, the depiction of Snow White in the 1937 movie “Snow White and the Seven Dwarfs” will enter public domain sometime in the 2030s likely.
But the character as Disney has portrayed her is still trademarked.
Using the example of Dorothy from “The Wizard of Oz,” Variety reported that the ruby red slippers of Dorothy aren’t present in the original novel. She wears silver shoes instead. Little details like this that are often part of the public consciousness may be part of a company’s trademark or part of a still-copyrighted depiction.
In other words, before making an adaption, you might need a good lawyer.
Will Disney characters ever be public domain?
Yes, but it’s complicated.
Other Disney characters will enter the public domain when their copyrights are up. We are just at the beginning of that process as what’s expiring in the next couple years are films from the late 1920s. That said, be careful when adapting. Trademark law is part of the equation.