Mickey Mouse (Version 1.0) Enters the Public Domain in the U.S., Brian Murphy

So, it is happening. The animated short “Steamboat Willie,” which was released in 1928 and features an early version of Mickey Mouse, will enter the public domain in the United States on January 1, 2024, alongside a cache of other works that were first published in 1928. We've been anticipating this for some time (see this post), and there has been a lot of press coverage in the past few weeks. But before you unleash your creative energy on the Mickster, see our cautionary notes below. Reports about Mickey’s demise are very much exaggerated.

This early version of the famous mouse isn't the only noteworthy work that enters the public domain on January 1st. As we do every year, we have cherry picked some noteworthy books, films and compositions originally published in 1928 that soon will be free of copyright restrictions in the U.S.. For more extensive lists, check out this list and this one. (Disclaimer: I haven't personally confirmed the publication dates of any of the works.)

Books

Radclyffe Hall, The Well of Loneliness
D.H Lawrence, Lady Chatterley's Lover
A. A. Milne, illustrations by E. H. Shepard, House at Pooh Corner (the book in which Tigger first appeared)
Virginia Woolf, Orlando

Films

Steamboat Willie (directed by Walt Disney and Ub Iwerks)
Lights of New York (directed by Bryan Foy)
The Circus (directed by Charlie Chaplin)
The Passion of Joan of Arc (directed by Carl Theodor Dreyer)

Compositions

“I Can’t Give You Anything But Love, Baby” (lyrics by Dorothy Fields and music by James Francis)
“I Wanna Be Loved By You” (lyrics by Bert Kalmar and music by Herbert Stothart and Harry Ruby)
“Let’s Do It (Let’s Fall in Love)” (Cole Porter)
“Makin’ Whoopee!” (lyrics by Gus Khan and music by Walter Donaldson)
“Sonny Boy” (George Gard DeSylva, Lew Brown & Ray Henderson)

Some Cautionary Notes

However, as we have cautioned in the past, there are some important limitations to bear in mind before you repurpose a work from 1928.

1. The Law is Different Outside the U.S.:

While works published in 1928 may be in the public domain in the United States, the same works may be subject to copyright protection in other countries. The term for protection for older works in many other countries is the life of the author plus 50 years (e.g., Canada) or 70 years (e.g., many countries in Europe). (In the U.S., we didn't adopt a "life plus" term of copyright protection until the 1976 Copyright Act.) Accordingly, a work originally published in the U.S. in 1928 by an Italian author who died in 1975 likely remains protected by copyright law in Italy and other countries that use a life plus 70 term of protection.

If you are planning to use a particular work worldwide, you should do more research to determine whether you need a license.

2. Derivative Works May Still Enjoy Copyright Protection:

Only the version of the work originally published in 1928 is in the public domain. Subsequent adaptations, editions and arrangements by later authors may include original content that is independently protected under copyright law.

For example, like many of us, Mickey changed (and arguably improved) with age, and there are significant differences among the versions created over the years. So while Mickey Mouse 1.0 will be in the public domain next week, later versions - or, to be more precise, original, copyrightable elements added after 1928 - could continue to enjoy some copyright protection. How thick or thin would such a copyright be? (See this post.) Can Disney claim protection for the different shapes and configurations of Mickey's ears, nose and face … or for the Mouse's color scheme (including red shorts and yellow shoes)? Or are these variations trivial, unoriginal or scènes à faire? (See this post and this one.) The extent to which the new elements might qualify for copyright protection is a question that, in the years to come, will be debated in law school copyright courses and, we can expect, in courts.

3. Watch Out for Sound Recordings:

As noted in this post, even if a composition is in the public domain, sound recordings of that composition published in 1924 or later potentially remain protected under the law.

The copyright status of sound recordings is complicated. But here is a primer:

Post-1972 Sound Recordings: Sound recordings were not protected under federal copyright law until February 15, 1972. This means that, currently, all post-1972 sound recordings are likely protected under federal copyright law. (Caveat: a sound recording published in the U.S. without proper notice between February 15, 1972 and March 1, 1989 would be in the public domain, subject to limited exceptions.)

Pre-1972 Sound Recordings: Until the passage (in 2018) of the The Classics Protection and Access Act (the "CPA Act") (enacted as Title II of the Music Modernization Act), pre-1972 recordings were subject to protection under state ("common law") copyright, not federal copyright law. The scope of that protection was extremely murky (to say the least). The CPA Act, in the words of the Copyright Office, "brings pre-1972 sound recordings partially into the federal copyright system" by providing a federal remedy for certain unauthorized use of pre-1972 sound recordings. However, the period during which an owner of a pre-1972 sound recording can seek a remedy under the CPA Act for unauthorized uses (referred to as the "term of prohibition" in the statute) is different from the term of copyright protection for works fully covered by the Copyright Act. The details, which are spelled out in 17 U.S.C. §1401(a)(2)(B), are summarized in this chart:

For example, while (as noted above) the composition “I Can't Give You Anything But Love, Baby” will be in the public domain on January 1, 2024, the owner of a 1927 recording of that song would still have a remedy under the CPA Act for the unauthorized use of that recording until January 1, 2028.

4. Some Works from 1928 Already Were in the Public Domain:

Some works published in 1928 already were in the public domain because the copyright owners did not comply with the formalities that were necessary under prior law. For example, subject to certain exceptions, a work published in the U.S. prior to March 1, 1989 without a copyright notice would be in the public domain. Also, under the 1909 Act, a work would fall into the public domain if the owner did not renew the copyright after an initial 28-year term of protection.

5. Other Laws May Provide Some Protection:

We can expect that certain rights holders, in certain instances, may try to use trademark law to prevent (or at least limit) the use of their works even after copyright has expired - at least in cases where they believe that consumer confusion is likely as to whether the rights holder was the source of the work or goods in question. Mickey Mouse is protected not only by copyright law, but also by trademark law. Disney has multiple registrations, including for the word mark MICKEY MOUSE and various versions of the mouse character, including this one which shows Mickey's evolution from the iteration in the 1928 short "Steamboat Willie" through today:

So, even after the copyright in the "Steamboat Willie" version of the character expires, Disney not only will be able to argue that original elements added to the Mickey character after 1928 are entitled to copyright protection (point 2 above), but also will be armed with these trademark registrations. How successful efforts by Disney and others to use trademark law as a sword remains to be seen, especially in light of the Supreme Court’s decision in Dastar Corp. v. Twentieth Century Fox. See also EMI Catalogue Partnership v. Hill, Holliday, Connors, Cosmopulos Inc.

Figuring out the public domain status of a work can be a little tricky. This handy chart is a good starting place to begin any inquiry.