Why is Mickey Mouse in a horror movie?

When the trailer for “Winnie the Pooh: Blood and Honey” hit the internet in January 2023, the masses were both confused and entertained. The same happened when the sequel debuted earlier this year. Since then, there have been several announcements about similarly dark re-imaginings of classic cartoons: “Bambi: The Reckoning,” “Peter Pan: Neverland Nightmare” and “Mickey’s Mousetrap.” The answer for why this is possible has been a part of the law for a long time.  

Many classic characters have recently entered the public domain — a term which applies to all creative work to which no exclusive intellectual property rights apply. This means any corporation or individual can legally use or reference these works without seeking permission.

Northwestern Now spoke with Peter DiCola, Pritzker School of Law professor and an expert on copyright law and intellectual property, to explain the current wave of reimagined characters. He clarified the difference between copyright and trademark, the history of the public domain and how movie makers can get away with reinterpreting classic characters without legal ramifications.

A brief history of copyright protection in the U.S.

In 1790, Congress passed the first copyright law act in the U.S. At the time, it only protected books, maps and charts for 14 years with a renewal period of another 14 years. According to DiCola, since its origins, copyright law always had a caveat of ownership ultimately returning to the public.

“While the work is under copyright, the public must deal with the copyright owner's terms for any protected uses. But then, eventually, the public owns it,” DiCola said.

Over the next century, Congress allowed other forms of creative works to be protected under the copyright law including musical composition, painting and photographs. By the 20th century, movies, sound recording, architecture and software were all eligible to be protected under the law.

In the late 1990s, President Bill Clinton signed into law the Sonny Bono Copyright Extension Act, which some dubbed “The Mickey Mouse Protection Act,” which built on the Copyright Act of 1976. It extended copyright to the life of the author plus 70 years. Corporate authorship extended to 95 years from publication or 120 years after creation, whichever end is earlier.

The 1998 bill was cheekily called the Mickey Mouse Protection Act by critics — mostly law professionals who considered it an act of corporate welfare — because Disney had long been lobbying for copyright extension. At the time, the corporation was seeking to prolong protections for Steamboat Willie, the first iteration of their mascot character which was fast approaching the public domain.

Now up for grabs

On Jan. 1, the original Steamboat Willie version of Mickey Mouse — depicted in black and white with a tall sailor hat — as well as his counterpart, Minnie Mouse, entered the public domain. The famous duo made their debut in a short film produced by Walt Disney in 1928.

“As a character, Mickey Mouse existed as Steamboat Willie, but then Disney itself used Mickey in all these different ways year after year,” DiCola said. “There are different versions of him. Only the versions through 1928 have entered the public domain.”

A creator can use Mickey as he is seen in Steamboat Willie, but can’t depict him in the modern way, wearing red shorts and yellow shoes that were not a part of his character until 1935. It’s also why characters like Goofy, Pluto, Donald Duck and Daisy Duck cannot show up in a project not associated with Disney either, because they are not yet eligible for the public domain.

“If people want to make sequels to Steamboat Willie or use the characters from the short film up through 1928, I'm confident they're going to be able to do that without legal pushback,” DiCola said. “As long as they stay clear of branding stuff, as in pretending to be Disney to confuse consumers about the source of their goods, they are within their rights.”

Distinguishing copyright from trademark

After the debut of “Blood and Honey,” audiences questioned why Winnie the Pooh could be used in a movie produced by a company other than Disney, but Pooh’s likeness can’t be used on related “Blood and Honey” merchandise. That’s because one version is protected under copyright, and another is protected under trademark. 

Even though many of these works are losing their copyright protections, which are temporary, companies can hold onto their trademarks, which last forever. People often get the two confused, DiCola said.

Prior to the mid-1880s, individual states provided the main protection for trademarks. That lasted through 1870, when Congress created the first federal statutory trademark law; in 1876, Congress revised the law to include criminal penalties for infringement. 

“Trademark laws protect a business from a civil wrong that causes that business loss or hurt,” DiCola said. “For example, a competitor pretending to be some other business, or trying to pass off their goods as though they are someone else. Trademark is all about avoiding consumer confusion about the source.”

Sometimes trademarks and copyright overlap. A logo is protected under trademark law, since it’s associated with a business and its brand, but it’s also visual art, which is protected under copyright.

“The copyright protects the original aspects of the creation as a work of art, and then the trademark is protecting the entity that created it in the marketplace,” DiCola said.

What’s next?

In the next 10 years, major characters like Warner Bros. Entertainment’s Popeye, Superman and Batman will be up for public consumption. Just as Disney, Universal, Time Warner and others lobbied hard in the 1990s, some think they may do the same as the more well-known versions of their iconic characters creep towards the public domain. But DiCola thinks Congress may be in the clear.

“I think there is a certain level of comfort there. These characters have evolved over the years,” DiCola said. “They’ve been redesigned so much in the later works that these companies still hold on to those copyrights.”

In addition to that, DiCola points out that the landscape is different than it was 30 years ago. “As tech companies have got bigger — Google, TikTok, Spotify — they’ve gotten more powerful in Washington, D.C.,” he said. “Google’s corporate position has always been emphasizing the limits on intellectual property and fighting against any further expansion. Even in the mid-2000s when they were much smaller. They're not alone.”