Business
Email
Print
Disney Says Don't Mess With The Mouse
ADVERTISEMENT
Published: August 29, 2008
He is the world's most famous personality, better known in this country than anyone living or dead, real or fictional. Market researchers say his 97 percent recognition rate in the United States edges even Santa Claus. He is the one - and for now only - Mickey Mouse.
As Mickey turns 80 this fall, the most beloved rodent in show business is widely regarded as a national treasure. But he is owned lock, stock and trademark ears by the corporate heirs of his creator, Walt Disney.
Brand experts reckon his value to today's Walt Disney Co. empire at more than $3 billion. Acts of Congress have extended Mickey's copyright so long that they provoked a Supreme Court challenge, making Mickey the ultimate symbol of intellectual property.
All signs pointed to a Hollywood ending with Disney and Mickey Mouse living happily ever after - at least until a grumpy former employee looked closely at fine print long forgotten in company archives.
Film credits from the 1920s revealed imprecision in copyright claims that some experts say could invalidate Disney's long-held copyright, although a Disney lawyer dismissed that idea as "frivolous."
Although studio executives are not yet hurling themselves from the parapets of Cinderella's castle, the unexpected discovery raises an intriguing question: Is it possible that Mickey Mouse belongs to the world - and that his likeness is usable by anybody for anything?
For the record, any knock-offs would have to make clear that they did not come from Disney or else risk violating the separate laws that protect trademarks. The potentially free Mickey is not the most current or familiar version of the famous mouse.
Question Focuses On 'Steamboat Willie'
Copyright questions apply to an older incarnation. Original Mickey, the star of the first synchronized sound cartoon, "Steamboat Willie," and other classics, had longer arms, smaller ears and a pointier nose.
The notion that any Mickey Mouse might be free of copyright restrictions is about as welcome in the Magic Kingdom as an old hag with a poisoned apple. Elsewhere, the idea has attracted surprising support.
"That 'Steamboat Willie' is in the public domain is easy. That's a foregone conclusion," said copyright scholar Peter Jaszi of American University's Washington College of Law.
The issue has been chewed over by law students and debated by professors. It produced one little-noticed law review article: A 23-page essay in a 2003 University of Virginia legal journal argued that "there are no grounds in copyright law for protecting" the Mickey of those early films.
Roger Schechter, a George Washington University expert on copyright, called the article's argument "a plausible, solid, careful case." By contrast, a Disney lawyer once threatened the author with legal action for "slander of title" under California law.
Disney declined interview requests.
A Flaw On A Title Card
It all started when a former Disney archivist named Gregory S. Brown wondered: Whose name is on the original Mickey Mouse copyright?
Brown went searching for flawed formalities - and found one. It was on the title card at the beginning of a "Steamboat Willie" cartoon.
The key was location of the word "copyright" in relation to the name "Walt Disney." There were two other names listed in between - Cinephone and Disney's top studio artist, Ub Iwerks. Arguably, any of the three could have claimed ownership, thereby nullifying anyone's claim under arcane rules of the Copyright Act of 1909. A judge, however, tossed Brown's arguments.
Then an Arizona State University law school student, Lauren Vanpelt, produced a paper agreeing with Brown. She posted her project on the Internet in 1999.
A Georgetown University law student stumbled on Vanpelt's paper more than a year later. "I was intrigued," Douglas Hedenkamp said.
Today, when courts rule on historical copyright issues, they follow the laws in place at the time - in this case, says Hedenkamp, the 1909 law requiring that the word copyright or its symbol be "accompanied by the name of the copyright proprietor" - a rule scholars said means in the immediate proximity.
The authoritative "Nimmer on Copyright" says that a copyright is void if multiple names create uncertainty, and courts have agreed.
Hedenkamp wrote to Disney's in-house lawyers, an attempt to satisfy his curiosity. Had he missed something? Or was there really a problem with Mickey's copyright?
Disney legal advisers were not amused. General Counsel Louis Meisinger wrote back that it would be "inconceivable that any modern court would find any confusion about the identity of the proprietor of Mickey Mouse cartoons."
Meisinger is now a Los Angeles County judge. Asked about the Hedenkamp article, Meisinger ignored an invitation to take up the argument again.
"Everything has to fall into the public domain sometime," he said, then headed back to court.
Email
Print
TBO.com - Tampa Bay Online Member Agreement | Privacy Statement | Work With Us
