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Capitalism, Mickey Mouse, and the Future of Copyright Protections

By Lauren Keller '26

 

In 1790, President George Washington signed Article I, section 8 of the U.S. Constitution into effect, which provided Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” (1) This gave artists ownership of their creations, and more than ever before motivated creators to produce artworks, write books, invent, and compose songs, among other activities. Today, artists like Madison Beer, authors like John Grisham, and private companies like the California surf company O’Neill use copyright and trademark laws to protect their products, intellectual property, and brand names. 


Cornell Law School defines copyright as “the exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something.” (2) However, this right does not remain exclusive to its creator forever. A copyright for a work created after 1978 extends past the author's lifetime by 70 years, with occasional exceptions. In the case of Mickey Mouse, copyright protection may be extended to keep the work out of the public domain for an additional time.


Mickey Mouse debuted in the short film “Steamboat Willie” in 1928. 95 years later, with the film’s copyright protection expiration, the “Steamboat Willie” version of Mickey is in the public domain as of the beginning of this year. While this means anyone within the U.S. can use Steamboat Willie without fear of copyright infringement, the iconic version of Mr. Mouse is still protected. 1978’s Walt Disney Productions v. Air Pirates differentiated between versions of cartoon characters as separate forms of creative expression due to their physical appearance. (3) Establishing that, Disney still owns the more popular version of Mickey Mouse, who wears red shorts and greets Disney World guests daily in Florida. (4)


In 2015, DC Comics v. Towle extended copyright protection of physical appearance to non-human works, which ruled that the “Batmobile” was also considered “sufficiently distinctive” to be considered a character on its own and thus copyrightable. (5)


However, there are exceptions to every rule. Work created by artificial intelligence (AI) is not considered a candidate for copyright protection due to its lack of human authorship, which is an integral factor in a claim for ownership and copyright. (6) (7)


To qualify for copyright protection, a work must adhere to specific criteria: It must demonstrate originality and uniqueness, refrain from infringing upon existing copyrights, have been created by a human, and be preserved in a stable and transmittable format. Section 101 of the Patent Act states, “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” (8) In the case of Broadband iTV v. Amazon.com, despite Broadband iTV holding a patent for the design of its platform that employs a templated video-on-demand display for subscribers, the vague concept of this service described in the patent was considered unpersuasive as evidence for Broadband to maintain exclusive ownership of a formatted entertainment landing page within a streaming service. (9) Under Section 101 of the Patent Act, the “subject matter was not sufficiently transformed into something other than the abstract idea itself and there [is] rendered as non-patent eligible subject matter.” (10) 


The patent held by Broadband iTV was based on an abstract idea, and as a result, its claim against Amazon could not be substantiated in court. The court states that a patent should not have been issued for the idea because while it was novel then, its use could not separate it from other platforms such as Netflix, Crunchyroll, Hulu, Disney+, and Amazon, who have adapted the advances in technology to create streaming platforms with a similar style to Broadband’s service.


For current and upcoming cases like the one filed by Nintendo Co., Ltd. and The Pokémon Company against Pocketpair, Inc., with the allegation that Pocketpair’s popular game Palworld infringes multiple patent rights and uses the Plaintiff’s intellectual property, (11) Broadband iTV, Inc. v. Amazon.com makes it increasingly difficult to prove that anything other than character design might have been used without permission. (12)


The United States thrives on being a free market economy driven by consumer demand and producer supply. Typically, when demand declines, suppliers are driven to innovate. This often leads to the consumer receiving a better product. However, if producers of a unique good or service cannot compete or innovate within an industry because of unfavorable copyright and patent laws, the market will see a decline in participants, new ideas, or both. In this case, focusing on preserving the rights of inventors through detailed patent law, artists maintaining more control over their artworks, and creators receiving incentives to spend their time experimenting with new ideas will increase the amount of innovation provided for the next generation. 


Intellectual property law is an ever-changing field, and despite numerous attempts from Disney and other corporations to retain exclusive ownership of technology and art, these works eventually expire or become obsolete through ongoing competition. Achieving an innovative yet competitive industry may seem like a distant dream, but with time and the provision of suitable incentives for creators of intellectual property, this vision can become a reality.


Endnotes

  1. U.S. Copyright Office, “Timeline,” Accessed September 21, 2024. https://www.copyright.gov/timeline.

  2. Cornell Law School, “copyright,” Accessed September 21, 2024. https://www.law.cornell.edu/wex/copyright.

  3. Anna Gordon, “Mickey Mouse is Now in the Public Domain,” Time, 2024. https://time.com/6551496/mickey-mouse-public-domain-steamboat-willie/.

  4. Casetext, “Walt Disney Productions v. Air Pirates, 581 F.2d 751,” 1978. https://casetext.com/case/walt-disney-productions-v-air-pirates-2.

  5. Justia Law, “DC Comics v. Towle, No. 13-55484 (9th Cir. 2015),” Accessed September 21, 2024. https://law.justia.com/cases/federal/district-courts/FSupp/345/108/1891375.

  6. Atreya Mathur, “Case Review: Thaler v. Perlmutter (2023),” Center for Art Law. https://itsartlaw.org/2023/12/11/case-summary-and-review-thaler-v-perlmutter.

  7. David Grossman and Keane Barger, “Thalter v. Perlmutter,” Loeb. https://www.loeb.com/en/insights/publications/2023/08/thaler-v-perlmutter.

  8. Cornell Law School. “35 U.S. Code § 101 - Inventions patentable.” Accessed September 21, 2024. https://www.law.cornell.edu/uscode/text/35/101.

  9. United States Court of Appeals for the Federal Circuit. “Broadband iTV v. Amazon.” https://cafc.uscourts.gov/opinions-orders/23-1107.OPINION.9-3-2024_2377827.pdf.

  10. Ibid.

  11. The Pokémon Company and Nintendo Co., Ltd., “Filing Lawsuit for Infringement of Patent Rights against Pocketpair, Inc,” 2024. https://www.nintendo.co.jp/corporate/release/en/2024/240919.html.

  12. Pocketpair, “Regarding The Lawsuit,” 2024. https://www.pocketpair.jp/news/news16.



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Florida Undergraduate Law Review 2024 | University of Florida

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