Walt Disney classics: derivative works
Everyone at least once in his life watched a Disney cartoon, maybe when you were a kid or maybe when you took your son to the movie theater.
It cannot be denied that Walt Disney created artistic masterpieces in which eternal values and feelings are embodied: but do we know Disney in depth?
Many of his classics have used public domain stories (whose copyright has expired), allowing Disney to build his economic empire upon the successful works of the past.
Let’s consider, for example, the earliest Disney animated film, Snow White and the Seven Dwarfs: Walter was inspired by a Snow White play he saw as a boy. This means that there was already an artistic adaptation of Snow White story, inspired by the original Brothers Grimm fairy tale.
Source material was found in Lewis Carroll’s for Alice in Wonderland, the Brothers Grimm for Snow White and the Seven Dwarfs, Sleeping Beauty and Rapunzel, Charles Perrault for Cinderella, and others, to have just and idea of the contribution of these writings.
However, the cartoons by the Walt Disney Studios are probably more well known than the original novel or short story on which they are based.
According to U.S. copyright law, a derivative work “is a work based upon one or more pre-existing works,” and includes “any . . . form in which a work may be recast, transformed, or adapted”(if the pre-existing work is still under copyright, the author’s or proprietor’s permission to adapt the underlying work will generally be necessary).
Drawings or cartoons (two-dimensional works) are protected independently if they meet the substantive requirements of copyright protection, and the rationale of this protection is that a work which is original is not necessarily new, since a graphic adaptation of an already existing literary character (whether or not under public domain) may qualify for copyright protection, as for example the literary characters Pinocchio or Cinderella adapted to the cartoon form by the Walt Disney Company.
The adapter’s or compiler’s copyright protection covers only to the “new matter,” that is, to the original contribution to the underlying material, and does not extend to or affect the copyright status of that material.Hence, the new work will not remove the prior literary work from the public domain, nor will it prevent other authors to create.
The notion of adaptation is very important to understand copyright protection, and for this we have to start from the Article 2(3) of the Berne Convention: “Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work”.
Ironically, Disney over the last several decades, has been focused on protecting his rights, preventing other artists and filmmakers from having the same opportunities the of the corporation.
Legal Framework in the United States before 1990
The first copyright act in the United States was the Copyright Act of 1790, although many states had passed various legislation securing copyrights.
The goal of the act was the “encouragement of learning”: Congress wanted to stimulate creativity through public access to works in the public domain, by establishing short copyright terms.
Authors had the “right and liberty of printing, reprinting, publishing and vending” the copies of theirs “maps, charts, and books” just for a term of 14 years but, if he/she was still living at the end of the initial term, the protection could be renewed for another 14 years.
In this way, not only copyrights had a short term, but the limited duration was confirmed by the original public meaning itself: “copy-right, the exclusive right of printing and publishing copies of any literary performance, for a limited time” (1803 English law dictionary).
American Founding Fathers introduced the British legal conception of copyright, first in state laws, then through specific language in the Constitution, and lastly in the statute in 1790.
James Madison and other founders considered copyrights as a form of government granted monopoly, but with some limits, since perpetual monopolies of every sort are forbidden. Madison explained: “There can be no just objection to a temporary monopoly in these cases but it ought to be temporary, because under that limitation a sufficient reward and encouragement may be given”.
Subsequently, in 1831 copyright term was changed to 28 years with a 14-year renewal and in 1909, copyright duration became 28 years with a 28-year renewal.
This image could be subject to copyright
Mickey Mouse debuted to the world in the 1928 animated short Steamboat Willie, and, at that time, Copyright Act of 1909 ruled: this meant that this copyright would have ended in 1984 after 56 years, and the short would have entered the public domain and be available for all to use.
The extension of copyright from 1990
Disney had always protected his copyrights and this can be easily understood because of the further possibilities of exploiting economically his characters: just think to the about 12 theme parks, 52 resorts, 9 studios, including Pixar and Marvel, and four cruise ships, owned by the company. In addition to this, Walt Disney World in Florida employs approximately 66,000 people and spends more than $1.2 billion on payroll and $474 million on benefits each year.
From these data, it is noticeable that the creation and protection of intellectual property is a primary economic motivation for Disney, because they hire many people and provide entertainment across the world .
Disney was very concerned to lose protection for his character, Mickey Mouse, the ultimate symbol of Disney with a 97 percent global recognition rate.
In fact, Mickey Mouse accumulated many revenues annually because was the main symbol of the society: just to have an idea, while Congress was debating copyright term extension in 1998, the copyright on Mickey Mouse was earning about $8 billion per year.
Moreover, if Mickey Mouse entered the public domain, other iconic characters would subsequently be released like Pluto, Goofy, Donald Duck, Snow White and the Seven Dwarves, Pinocchio, Dumbo, Bambi, and Cinderella, and this represented a big loss because the creation of new characters could be very expensive.
But, in 1976, just eight years prior to Mickey’s expiration, Congress completely conformed U.S. copyright law to European standards. Copyright protection was extended for works made for hire to 75 years from publication (extending the copyright for Steamboat Willie through the year 2004).
And again, in 1998, Congress passed the Sonny Bono Copyright Term Extension Act, granting authors an additional 20 years of copyright protection. Hence, Mickey remains under copyright protection through 2023, 95 years after his first premiere.
The Sonny Bono Act was highly criticized and, in particular, critics argued that maintaining copyright protection 70 years after the death of the artist, badly ruined the careful balance that copyright provides in inspiring creativity, by vindicating the rights of the public.
This image could be subject to copyright
The birth of Disney live actions
The Disney’s latest formula is represented by live action in a form of cinematography or videography that uses photography instead of animation. In this case, an old story is adapted, and will please children, their parents, and a generation of adults with a specific, nostalgic connection to the original version, that had cartoon form in 1990s.
Since 2010, in fact, Disney started to produce remakes of his great classics and this trend started with Alice in Wonderland, made by Tim Burton, followed by Maleficent in 2014 .
Then, the live actions of Cinderella, Dumbo, Aladin, The Lion King followed, just to mention some examples.
If on one hand remakes have evoked nostalgia in many people, on the other hand is born on social media a conspiracy theory, according to which new films are created to extend the copyright term of the original films.
But this theory is not true and has to be rejected because copyright affixes to a “original works of authorship fixed in any tangible medium of expression”: this means that it applies to works and specifically precludes ideas, procedures, concepts, etc.
As a result, a new work cannot extend the copyright of an old work, otherwise Disney and other rights holders would be constantly modifying and re-releasing new works based on old ones to move back the clock.
However, this does not mean that copyright is not involved in this choice.
Since most of his copyrights will expire in less than 20 years, Disney is close to the expiration of exclusivity on the property: hence, if someone wants to do sequels, or to use the relative trademark,this is the right moment to do it.
Moreover, there are other different intentions behind remakes, that will be analyzed, as follows.
Firstly, remakes are profitable and less risky than original product: if the audience already liked the stories, there’s a greater chance they will pay to see it in another version..
Secondly, now times have changed and some things that existed in old cartoons, today are not acceptable anymore because of a different cultural and political sensitivity. This is the reason why Disney has examined the previous limits contained in the old cartoons and is correcting them, adapting the stories to the modern context. For instance, in the original Lady and the Tramp, we could find the two Siamese cats as the most offensive and negative characters in the film, with exaggerated Chinese accents and a musical motif to their song, “The Siamese Cat Song”, that today is considered racist towards Chinese people. So, in the live action, this song has been replaced by a music track sung by Janelle Monae.
Finally, remakes have also the goal to increase the appeal of a certain brand: for example, The Lion King of 2018 has also contributed to the sale of new puppets, t-shirt, cds of Simba and Mufasa in the Disney Stores: this means more profits for the company.
What is the destiny of Mickey Mouse?
As we have discussed before, the duration of copyright protection was repeatedly extended in the United States by many statutes, so, as those precious 95 years began to end, many expected another extension. But this did not happen until now, and now 2023 is getting closer.
Surely, the political climate and the sensitivity for copyright have changed radically over the last 20 years.
While in the 70s and 90s, copyright legislation was not an interesting topic to the public at large, in the last years control over copyrighted material is increased thanks to Internet, and now a lot of people can access a lot of creative material from a growing public domain, in ways that were not possible in 1998.
Also, Constituents care more about copyright law than they did in 1976 or even in 1998,because of the rise of online streaming and easily accessible pirated content has made the issue more relevant.
The fight against piracy brought the introduction of SOPA, e. g. the Stop Online Piracy Act, that punished or blocked sites sharing pirated content: but, it received a series of large-scale protests (for example, Google and Wikipedia went dark for a period of time to show their opposition and resistance to the act).
It became clear that most of the public was not interested in allowing the government to further commodify the internet, especially in regards to creative work, so it easily understandable why lawmakers are now hesitant to change any existing copyright protection.
But, even if those protections will expire in 2023, Disney could still prevent rival studios from using Mickey’s image.
In fact, if Disney will prove that Mickey has evolved beyond his first screen appearance into the symbol of its corporation, he will always remain a protected property.
The image of Mickey is inseparable from the company, so can be claimed rather easily. It is enough to think about their theme parks, cruise ships, media, and the Hidden Mickeyshidden in their movies. In addition to this, Disney has separately copyrighted the various instantiations of Mickey in different movies and other works, and each separate copyright enjoys separate expiration dates.
While copyrights are designed to only temporarily protect a single work of artistic expression, trademarks have the potential to last because protect words, phrases and symbols used to identify products or services.
In conclusion, in 3 years it is probable that Mickey will become public property, changing Disney’ destiny.
But, in this different era for the company, after Mickey Mouse who will be the next Disney’s mascot?
Innovative solutions that differ from copyright extension
From the analyzed framework, again we can notice that copyright extension is not the definitive solution.
As we mentioned earlier, in the past, the United States copyright time frame was smaller than the one adopted in the European Union, so regulatory interventions that modified it were justifiable.
But now, in the United States as in Italy, there is a protection of 70 years post mortem auctoris , except for works of corporate authorship which are protected for 120 years after creation or 95 years after publication, as Sonny Bono Act stated in 1998.
A further extension of copyright term, as well as would not be easy in a modified political and social context, as highlighted, would also cause an excessive imbalance between American copyright and the European one, provoking easy suspicion and accusations of commercial lobbying.
So, Disney has to accept the expiration of copyright of Steamboat Willie, trying new solutions to avoid predictable economic losses.
In my opinion, we can identify innovative strategies before the expiration in 2023: the claim of Mickey Mouse’s image asa symbol of the corporation and definitive trademark, in fact, is not enough.
Even if Walt Disney can claim Mickey as trademark, it cannot do anything to save his copyright, so other filmmakers and cartoonists can take advantage of the idea of the mouse, giving life to new stories that are completely independent from the ones of Walt Disney, so devaluing also the trademark value.
Then, a possible solution could be to make a live action, focused on Mickey Mouse with the funniest moments of his career: in this type of remake, Mickey could turn away from the cartoon where he was born, to become a real mouse with his characteristic red pants, white gloves and yellow shoes.
In this way the remake, using a character well known to the public and very famous, on one hand it will surely bring revenues to the company, on the other hand will create a new copyright and a new trademark that can replace the previous ones.
In this remake, Mickey Mouse will always be Mickey mouse, but in an updated version, that will replace the old Mickey (cartoon version), becoming a new symbol of the company.
Doing so, even if Steamboat Willie will become public domain, the artists could inspire with the Mickey-cartoon, and not with the Mickey-live action, whose copyright would start again.
And, this should not be an economic loss for Disney because, being used with the technique of live action, today’s children would identify with the new version much more than the old one, represented by cartoons that many of them have never seen.
Second possible solution: make a live action always focused on Mickey Mouse, accompanied by his father Walter Disney.
This second live action would represent the life of Mickey and especially his relationship with his creator, his “birth” and also his “death”. It would represent a Mickey that is tired and old because of his 95 years, and dies following Walter, already dead from a long time.
A similar live action, would be profitable because it would be the last film of Mickey, but could also have indirect negative effects on the future works of competitors that will use the famous mouse, become public domain.
This can be easily understood: when Mickey’s death is shown, the audience will be confused by other works that will use the same character, since many children would not understand why he has reappeared, recognizing as unique and true just the Mickey by Walt Disney.
Differently from the first solution,in which Mickey-remake becomes the new trademark of the company, in this live action the death of the mouse should be followed by the choice of a new symbol for the company. This economic choice is more risky than the previous one, and it should avoid confusion in the public that would not recognize the trademark of Disney without the typical characteristic mouse.
To say goodbye to Mickey Mouse, represents surely an historical change for Walt Disney, and any solution to avoid negative consequences, at the beginning will not be easy at all.
But Walter Disney said: “We keep moving forward, opening new doors, and doing new things, because we’re curious and curiosity keeps leading us down new paths”.
Well, this in my opinion is the right approach that the company should follow, also according to the visions of his creator.
E. Smith, Public Domain Disney, (2019), https://tedium.co/2019/01/03/public-domain-disney/.
See B.Gabriel, The public domain is working again- No thanks to Disney,(2019), https://www.cartoonbrew.com/law/the-public-domain-is-working-again-no-thanks-to-disney-169658.html.
WIPO, Intellectual Property Handbook, 95-96 (2008).
17 USC § 101.
This happened, for example, with the Disney film “Mary Poppins”: Walter Disney tried to obtain the film rights from Pamela Travers, the writer of the stories, for twenty years. This contention offered also an inspiration for the film “Saving Mr. Banks”.
Although there was already an adaptation of the traditional fairy tale of Gabrielle Suzanne Barbot de Villeneuve, i. e. the Disney cartoon Beauty and The Beast (1991), in 2014 the tale was used again for the film “Beauty and the Beast” (2014) with Lea Seydoux and Vincent Cassel.
The United States joined the Berne Convention on 1 March 1989.
D. Khanna, 50 Disney Movies based on the Public Domain, (2014), https://www.forbes.com/sites/derekkhanna/2014/02/03/50-disney-movies-based-on-the-public-domain/#5470e55c329c.
C. Roggero, Perché Topolino non è in pubblico dominio, (2016), https://www.dandi.media/2016/10/durata-del-copyright/; and S. Schlackman How Mickey Mouse keeps changing Copyright Law, (2014), https://alj.artrepreneur.com/mickey-mouse-keeps-changing-copyright-law/.
Even the story told in “Steamboat Willie” was derived from a Buster Keaton film “Steamboat Bill Jr” and it was considered a parody.
C. Anderson, The History of U.S. Copyright Law and Disney’s Involvement in Copyright Term Extension, (2018), Honors Theses AY 17/18. 21, https://repository.uwyo.edu/honors_theses_17-18/21.
Today, the value of Disney’s brand name itself is estimated at $43 billion, largely due to Mickey Mouse products.Furthermore, in May 2017, Disney’s net worth was estimated at $178 billion, according to Forbes.
M. Rosen, As copyrighted works (re)enter the public domain, is the end of Mickey nigh?, (2019), https://www.aei.org/technology-and-innovation/intellectual-property/as-copyrighted-works-reenter-the-public-domain-is-the-end-of-mickey-nigh/.
A. Leszkiewicz, Why is Disney producing so many live-action remakes of its most popular animated movies?,(2016), https://www.newstatesman.com/culture/film/2016/05/why-disney-producing-so-many-live-action-remakes-its-most-popular-animated; and J. Di Virgilio, Cosa si nasconde dietro ai nuovi live action Disney?, (2019), https://www.illibraio.it/live-action-disney-1150219/.
J. Bailey, Why Disney’s Remakes don’t extend its Copyright, (2019), https://www.plagiarismtoday.com/2019/04/09/why-disneys-remakes-dont-rest-its-copyright/.
According to a 2003 Supreme Court Decision (539 U.S. 23), trademark cannot be used to extend copyright, applying just to the work itself.
P. Hombrebueno, Da Aladdin a Il Re Leone: ecco perché la Disney continua a fare i remake dei suoi cartoni, (2019), http://www.bestmovie.it/news/da-aladdin-a-il-re-leone-ecco-perche-la-disney-continua-a-fare-i-remake-dei-suoi-cartoni/696482/.
This live action is very unique because was released on November 12, 2019 on Disney +, making it the first Disney remake to not receive a theatrical release but on an on-demand streaming service platform.
M. Debczak, Why Mickey Mouse could soon be in the Public Domain, (2018), https://www.mentalfloss.com/article/524325/why-mickey-mouse-could-soon-be-public-domain.
T. Lee, Mickey Mouse will be Public Domain soon- here’s what that means, (2019),https://arstechnica.com/tech-policy/2019/01/a-whole-years-worth-of-works-just-fell-into-the-public-domain/.
There are Hidden Mickeys in several films, although the Walt Disney Corporation has not officially recognized them yet. For example, in Oliver and Company when the stray dog’s human friend, Fagin, looks at his collection of watches, the first watch on his wrist has a Mickey Mouse clock face.
Infact, Walter created Mickey Mouse because he was inspired in his studio in Kansas by the vision of a brown mouse that always visited him.