As we approach the 95th anniversary of the first disclosure of the famous Mickey Mouse by The Walt Disney Company in 1928 in the short film Steamboat Willie, the matter of the imminent entry into the public domain of this iconic character, which will occur on 1st January 2024, has been widely reported.
In accordance with United States copyright law, as most recently amended (the last amendment was in 1998 and granted an additional 20 years of protection to all copyrights in force at that time, being “affectionately” nicknamed by its opponents as The Mickey Mouse Protection Act), The Walt Disney Company’s copyright on this mythical work will soon expire, 95 years after its first publication in the abovementioned short film.
But… what if Mickey Mouse were Portuguese?
The Portuguese Code of Copyright and Neighbouring Rights (CDADC) stipulates that “the copyright on a work originally attributed to a legal entity expires 70 years after the first lawful publication or disclosure thereof”. However, the said Code immediately provides for an exception to this general rule for legal entities, the aforementioned provision concluding as follows: “(…) except if the individual persons who created it are identified in the versions of the work made accessible to the public”. In this situation, the term of the copyright is calculated individually if it can be attributed to a single creator, i.e. within the general terms of Article 31 CDADC: “The copyright expires (…) 70 years after the death of the intellectual creator”.
But what not many people know (due to immediate association with Walt Disney) is that the person responsible for the existence of the well-loved Mickey Mouse is the designer Ub Iwerks (Ubbe Ert Iwwerks). This authorship is clearly and specifically identified in the opening credits of the short film Steamboat Willie at 00:11 seconds, where the following wording can be seen in quite large lettering: “A Walt Disney Comic by Ub Iwerks”.
So, it turns out that it might have been “better” if Mickey Mouse were Portuguese…
In fact, since the designer Ub Iwerks is perfectly identified as the creator of Mickey Mouse in the work that was made accessible to the public, the respective copyright would only expire in Portugal 70 years after his death. That fateful day was 7th July 1971, meaning that the “Portuguese Mickey Mouse” would only enter into the public domain in 2042 – the year following the 70th anniversary of the death of its intellectual creator.
The reality is that in spite of all the efforts made over the years by the U.S. company to postpone this moment, it will have to accept that Mickey Mouse really will enter into the public domain on the first day of the year 2024, as stipulated under the country’s legislation.
It is nevertheless important to point out a few essential aspects regarding that moment. In fact, only the figure of Mickey Mouse as depicted in the short black and white film Steamboat Willie will enter into the public domain, i.e. that precise version – less elaborate, without the famous white gloves and with a pointier nose, just like a “real” mouse. All the later variations of the original Mickey Mouse work will continue to enjoy copyright protection until their 95th anniversary.
Finally, it is essential to remember that copyright is a type of intellectual right, the protection of which can (as is advisable in most cases) be combined with the protection afforded by other types of rights, namely industrial property, for example a trademark or design. Naturally, The Walt Disney Company has the designation “Mickey Mouse” duly registered as a trademark in its name practically everywhere in the world, either in isolation or in combination with other expressions or images, and also as a device mark for the various versions of the design of the famous mouse.
Therefore, anyone who wants to use the 1928 version of Mickey Mouse after it has entered into the public domain will not have an easy time. This is because in order to do so, for example in Portugal, such use cannot give rise to any association with The Walt Disney Company under penalty of engaging in acts of unfair competition, even if that it is not the intention, which we must admit would be practically impossible.
