Earlier this week, the Disney film "Steamboat Willie" entered the U.S. public domain after nearly a century, as did its protagonist Mickey Mouse. It was a turning point for one of the most iconic and fiercely protected intellectual properties of the 20th century, and soon there was an explosion of Mickey-based reimaginings, including at least two movie trailers, a horror game, a custom artificial intelligence model, and a series of predictably uninteresting memos. The original cartoon has also been uploaded to platforms such as YouTube in its entirety, and anyone can watch it for free.
Another sign of this change is a confusing flurry of review decisions. In the first days of January, Techdirt noticed that Disney was apparently still applying to block videos on YouTube in some international markets. Mashable reported that in these markets, a remix was restricted and had its copyright removed. Illustrator Jef Caine posted on TeePublic an infringement notice he received for a Mickey Mouse-themed shirt emblazoned with the slogan "NoManOwnsMyDestiny."
It’s unclear whether the restrictions are legitimate calls for caution, prudent over-regulation, or just a fluke. But their appearance is not surprising. Brutal copyright enforcement has shaped the boundaries and culture of the Internet. It’s a world where vast numbers of people are testing the edges of nuanced legal frameworks, and things are likely to get more complicated as more and more of pop culture becomes public property.
The above example touches on a gray area where restrictions may still apply, so there are several obvious possible explanations. First, Steamboat Willie's copyright situation outside the U.S. may be more confusing, especially in Europe, where YouTube appears to be restricting access. Second, Disney still owns Mickey's trademark, so -- as Duke Law School professor Jennifer Jenkins explains with a handy mouse-shaped illustration -- Disney can argue that certain merchandise might mislead people into believing it was created or endorsed by Disney. Third, Disney still owns the rights to later versions of the character, and Willie in Steamboat Willie doesn't have the now-standard features like his white gloves or bright red shorts (since this is a black-and-white film). Both features were included in Kane's original shirt design, but it's worth noting that his shirt was not redesigned and there are still versions of his shirt available online.
But the ambiguity isn't all good for Disney. Jenkins noted that "not every feature of later iterations of Mickey can be individually copyrighted," including "merely trivial" updates or updates that use obviously original elements. (For example, a court could decide that a simple red color scheme is not a protectable addition). Techdirt points out that Europe's international copyright "short-term rule" policy may push Mickey into the public domain.
In addition to the freedoms of the public domain, U.S. fair use laws allow for parody and commentary on copyrighted works, so even before this week, these obviously subversive Mickey creations might have been legal. It's difficult to determine right now because fair use is not a simple flow chart and requires weighing multiple factors on a case-by-case basis. Relying on the public domain is a safer bet.
On an Internet dominated by a handful of large and powerful platforms, massive content curation obscures all of this complexity—and while YouTube and other platforms deserve credit, you can now find a lot of Steamboat Willie-related content. Internet moderation is an impersonal, multi-layered process that is often automated, and those involved often have little idea they have done anything wrong. Especially given the sheer volume of content involved, false positives are common.
In theory, platforms act as middlemen for delivering copyright notices, and people are free to file counterclaims if they believe they were wrong. But the balance of power is not on the user's side. The result of taking a desperate risk may be to leave a black mark on your account record, or to be temporarily locked, and to pay a real financial price. And if you want to reach a large audience without joining a few social media giants, your options are still slim, even if the prospects have improved a bit recently. Meanwhile, while copyright trolls are occasionally brought to justice, the consequences of overzealous infringement or even deliberate extortion are less clear. Platforms such as YouTube are increasingly getting around unresolved legal issues by striking deals with the world's largest rights holders, effectively codifying their own rules.
The obvious result is that the system favors conservative interpretations of copyright law, regardless of whether those interpretations hold up in court. Big media companies can defend themselves against false complaints — like Netflix, which faced a lawsuit in 2020 for making its public-domain Sherlock Holmes series too friendly. And smaller creators who rely on the platform's favor may decide it's not worth the trouble. The risk will only grow as major characters such as Superman, Batman and James Bond begin to lose copyright protection in the United States, currently set to happen over the next decade.
The evolution of the American public domain is a fairly new issue for many online platforms. In the late 1990s, the U.S. Congress passed the Copyright Term Extension Act (sometimes called the "Mickey Mouse Protection Act"), which retroactively extended the copyright terms of media such as "Steamboat Willie." Today's internet giants gained power during the 20 years that the public domain was frozen - there was even speculation that the public domain might be extended again, but thankfully, this speculation did not materialize. Before 2019 began, sites like YouTube simply didn't have to deal with a world where important intellectual works were out of copyright in one of their largest markets.
Now, this world is becoming a clear reality and users are taking advantage of the opportunities within it. 2024 is only a few days old, so we may not have seen the last of the Mickey Mouse remix, let alone what people will do with other emerging creations. It's also possible that we haven't seen the last infringement notice against them, or the last question about whether they're fair.