How people are using Mickey Mouse in his post-copyright era

It’s now Jan. 4, and in the four short days of 2024 so far, a certain cartoon mouse has been so extensively used and abused online that you’re no doubt already aware of this fact: Mickey Mouse, at least as he’s portrayed in the 1928 films Steamboat Willie and Plane Crazy, just legally entered the public domain. He belongs to us all now. 

A whole spectrum of Mickey-related posts and memes have been posted online, mostly ranging from irreverent to revolting, and it’s making this perhaps the most raucous time in the history of the public domain — even wilder than the hype around the gore-and-boobs-fest that was last year’s Winnie-the-Pooh: Blood and Honey. Everyone seems to have a joke, a Steamboat Willie remix, or a hot take. 

As Jennifer Jenkins, a clinical professor of law teaching intellectual property at Duke University, noted to Mashable: “With all of these [public domain] works, I’m interested to see the uses we’re still talking about in 10 or 20 years that have managed to maintain cultural relevance, ideally because they’re thoughtful and really good. But the opening salvos are always interesting too.”

Indeed, little of what we’ve seen as this Mickey Mouse free-for-all has kicked off is legally groundbreaking — and most of it is in the spirit of jest anyway. Moreover, it probably wouldn’t even really be worth Disney’s time to litigate this stuff, even if corporate leadership took major umbrage.

But most of what’s been happening with Mickey lately is still illustrative, even if all it does is miss the point in new and exciting ways.

Does my Mickey Mouse content need to be ‘transformative’ or ‘fair use’?

Long story short: no. You don’t need to have a “fair use” rationale to use Mickey in your own work. He belongs to you. To illustrate this, let’s look at the most notorious example from recent days, the upcoming video game formerly known as “Infestation 88,” announced just after the new year by a company called Nightmare Forge Games.

This is a cooperative survival horror game set in 1988, and the characters are “twisted versions of classic characters and urban legends.” With a black-and-white ghoul version of Mickey Mouse in a Steamboat Willie hat apparently being one of those characters, though he doesn’t appear to be named in the game trailer. 

But rather than upsetting Disney, “Infestation 88” only seems to have upset people who think of the number 88 mainly as a common neo-nazi dogwhistle — a reference to David Eden Lane’s “88 Precepts,” an anti-jew manifesto. “Unfortunately, we were unaware of any additional meanings the number ’88’ has,” the company quickly wrote in an X post. They’ve since changed the name to “Infestation Origins.” 

At any rate, without Steamboat Willie entering the public domain at the start of this year, there might have been a case for arguing that the version of Mickey used in the game was permissible under the “transformative use” doctrine in US copyright law. If the game had repurposed Mickey Mouse in a way that was far removed from how Disney used the Mickey Mouse character, an enterprising lawyer might have made such an argument in the defense of the creator. 

And as for whether said argument would actually work, well, Disney does already put Mickey Mouse in somewhat violent video games all the time, and yes, Disney does sometimes make Mickey Mouse into a scary monster in official Disney cinematic works. So if I were a lawyer at Nightmare Forge Games, I would certainly be glad Mickey is in the public domain. 

Does my use of the Mickey Mouse character need to be a parody?

There’s another form of legal protection that might shield an awful lot of recent Mickey Mouse content creators from the Most Litigious Place on Earth: parody. Much of the art that’s materialized recently — including the Ben Garrison cartoon above — has clearly been made in the spirit of parodying Mickey Mouse. And that’s much more protection than anyone needs in order to play in the Mickey sandbox now that the character is in the public domain. “You don’t need a parody argument,” Jenkins told Mashable.

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Similarly, comedian Connor Ratliff made a parody version of Steamboat Willie, and — like Ben Garrison’s parody, he didn’t need to wait until this year to do it. What’s more, there’s a note on Ratliff’s title card saying the film is “no longer under copyright,” but that’s unnecessary too. The early Mickey Mouse films aren’t Creative Commons works; they’re simply public property. Ratliff can copyright his own film, and even sell it for a profit if he wants to. “Reproducing and adapting the footage in whatever way you like is legit,” Jenkins said.

Can I claim I created Mickey Mouse?

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I know, I know: the people posting some version of “Hey I just drew this,” and then embedding a frame from Steamboat Willie on January 1 were just kidding. But can you go a step further with this, legally speaking? Can you take Steamboat Willie in its entirety and say it’s something you made? 

Sort of, yes. “There’s no federal law against plagiarism,” Jenkins said. But that doesn’t mean you can’t get in minor legal trouble for lying to any (purely theoretical) buyer of your “art” who actually believed you created Steamboat Willie. Local and state laws relating to art fraud, or maybe even laws against retailers lying to their customers may apply, though this is probably not the sort of thing that will land you in jail, or get you sued for millions. This is more like the kind of thing where you’ll have to give someone a refund. 

Can I use Steamboat Willie as a logo?

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If you’re short on time, and you want an image for your logo, but you need something that will come across as warm and familiar without blowing your whole budget on graphic design, can you just plaster an image Steamboat Willie on it? After all, he’s in the public domain. 

Not so much. “That looks like a TM [trademark] problem,” Jenkins noted. 

Like it or not, if you incorporate Mickey Mouse into your logo, you run into a basic — and very legitimate — problem that affects consumers: you’re putting someone else’s trademark on your product. Disney may no longer hold the copyright on Steamboat Willie the film. But when it comes to using the iconic image of Steamboat Willie steering that boat as a piece of branding, yes, Walt Disney can still very much claim ownership of that. And for good measure, in recent decades the company has officially used that exact Steamboat Willie image in at least one of its logos.

If you plastered Steamboat Willie onto your logo, consumers would, in all likelihood, assume you were affiliated with Disney, which is why trademark law exists in the first place.  

I just love Mickey Mouse. Can I tell a straightforward story about him?

Definitely.

One thing there hasn’t been much of online lately is earnest content that uses Mickey Mouse as a character in an original story. It almost feels absurd to tell a Mickey Mouse story, because he’s more associated with logos and toys than with stories at this point. And that’s a shame because Mickey was once synonymous with animated storytelling. He now has the same legal status as other iconic characters closely associated with concepts, such as Robin Hood or Helen of Troy.

He’s been unshackled from a corporate overlord, and he’s owned collectively by all of humanity. Is this really the greatest we can do with him?

For the record, The Walt Disney Company is part of the problem here. The company that all too recently laid claim to all things Mickey has never once used their cherished centerpiece character as the protagonist of a theatrical feature film (unless you count the handful of screenings of the 2004 straight-to-DVD movie Mickey, Donald, Goofy: The Three Musketeers). Disney also hasn’t put Mickey on the big screen at all — not even in a short — in the decade since 2013’s Get a Horse! was released in front of theatrical screenings of Frozen. 

So perhaps the boldest, most iconoclastic thing a creator could possibly do right now isn’t to make Mickey Mouse into naughty drawings, slasher villains, political cartoons, or anti-corporate subversive art. It would be to just grab the reins from Disney, and put Mickey Mouse in a piece of artwork that people truly love. 

Or, as Jenkins put it, “someone do something better with the mouse!”