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Recently Mickey Mouse fell into public domain, but according to CNN,

There are differences between the 1928 Mickey and the company’s mascot today. The Mickey of “Steamboat Willie” lacks the current Mickey’s gloves and oversized shoes, and his eyes are small black ovals without pupils.

While it's true the Mickey in the Steamboat Willie does lack the gloves, it's not true about the Mickey in the opening frame nor the end frame, both of which haves gloves and shoes. He has shoes throughout Steamboat Willie.

Opening frame End frame

Is the depiction of Mickey with gloves and shoes in public domain too? Let's ignore the qualifier of "oversized".

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  • I don't see them as being the same. This one specifically assumes the general consensus about the moving depiction being in public domain, I'm just question which depiction that is. I find it hard to believe that CNN didn't know about the title card and closing card of the film. Are they not covered? I don't think it's obvious here, but maybe I'm not missing something and CNN is just flatly wrong and extremely lazy. Jan 3 at 22:03
  • I deleted my earlier comment because it turned out to be not so obvious whether the title card is in the public domain. The other question that I suggested as a duplicate is mentioned in my answer.
    – benrg
    Jan 4 at 0:44
  • Relevant info: Mickey appears in color with gloves and shoes, identified with the name "Mickey Mouse", in an official poster created in 1928: reuters.com/article/idUSBRE8AT04H
    – Milo P
    Jan 4 at 19:06
  • @MiloP that may very well be the case, but I can't even find a claim that it was published (never mind substantiating the 1928 date). It "belonged to the family of a deceased collector" which may mean it was an unpublished private drawing and not subject to the public domain. Jan 4 at 19:32
  • @EvanCarroll Heritage Auctions describes it as a one sheet produced and distributed to publicize the early Mickey Mouse cartoons. That said, you're right that the source of the claim that it dates to 1928 is unclear. Heritage's description seems to place it no earlier than Steamboat Willie based on Celebrity Productions's involvement and the reference to Cinephone.
    – Milo P
    Jan 4 at 19:43

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The Library of Congress's Cumulative Copyright Catalog: Motion pictures, 1912-1939 has only one entry for Steamboat Willie, with a copyright year of 1928 (p.813), but the title card says "COPYRIGHT MCMXXIX", i.e., 1929. It seems plausible that the title and end cards—which are similar to each other in style, and notably different from the Mickey in the short itself—weren't in the work that was registered and performed in 1928, and may be under copyright in the US until the end of 2024.

On the other hand, the copyright notice on the title card seems to be invalid: the 1909 Copyright Act requires the notice to "consist either of the word 'Copyright' or the abbreviation 'Copr.', accompanied by the name of the copyright proprietor [...]", and it's unclear who the copyright proprietor is supposed to be here (Disney Cartoons? Ub Iwerks? Powers Cinephone?). Under the 1909 law, works without a valid notice were not protected by copyright, so it also seems plausible that these cards have been in the public domain since 1929. Douglas A. Hedenkamp makes that argument in Free Mickey Mouse: Copyright Notice, Derivative Works and the Copyright Act of 1909, 2 Va. Sports & Ent. L.J. 254, 255 (2003) (full text from the Wayback Machine). In fact he argues that the entirety of Steamboat Willie lost copyright protection in 1929.

Whether "the depiction of Mickey with gloves and shoes" in a broader sense is in the public domain also depends on trademark law. There is another question about that: Can Disney use its trademarks to stop reproductions of Mickey Mouse even after "Steamboat Willie" enters the public domain?.

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    Thanks, I would think it would be a bit self-incriminating for Disney to call the reproduction with the card the "original" but I have no idea if that would sway the court. Jan 4 at 1:11
  • @EvanCarroll any transmission/performance of an original work has some degree of surrounding labelling, be it introductory text or title/end cards, so in the absence of explicit delineation of what part is "original" it wouldn't be reasonable to read any statement of Disney's as intending to claim the cards specifically to be "original". So long as any remaining copyright in the cards belongs to them, it would have no bearing on their right to use them.
    – Will
    Jan 4 at 13:44
  • @Will It's an argument, I just don't find it particularly convincing: I'm not aware of anyone using "cartoon" to refer to the material after the title card, and before the end card. All the more so when the title card and the end card both exhibit the same characters drawn by the same cartoonists. Jan 4 at 16:01
  • A follow up question: law.stackexchange.com/q/98515/218 Jan 4 at 16:07
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    @EvanCarroll whether the cards constitute part of the cartoon when included in the presentation has no relevance; if they were added to it at a later date, the cartoon with that addition is a derivative work, and the copyright for the added parts applies from the date they were added, regardless of whether its authors created the original work with similar depictions of the characters at an earlier date. It's possible that the audience at the November 1928 premiere really was shown a card bearing the year 1929 but I'd not call that the most convincing explanation.
    – Will
    Jan 4 at 17:57
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Gloves and shoes are not particularly relevant.

Consider a gloveless image that has passed into the public domain because its copyright has expired. Anyone is free to create derivative works from this image, which includes making a derivative image with added articles of clothing.

Conversely, consider a gloved image that is still protected by copyright. Creating a derivative of this image is infringement, which includes making a derivative image with omitted articles of clothing.

If someone makes a derivative of the first image that includes the addition of gloves, there could be an argument that the gloves constitute derivation from the second work -- a derivative work can have more than one source. But whether this argument is likely to be successful (and whether it is even reasonable) will depend on the gloves, in particular on how closely they resemble gloves from a later copyright-protected image of Mickey Mouse.

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  • If the copyright office's claim that copyrights cover expression rather than ideas is true, then a particular expression of the idea "X with gloves" would be copyrightable only if someone who was shown the public domain character X and asked to depict the idea "X with gloves" would be unlikely to match the other expression. On the oher hand, copyrights have been recognized on concepts related to fictional characters which would seem far closer to "ideas" rather than "expressions", so it might view a story or other work related to a mouse that wears gloves as infringing upon the copyright...
    – supercat
    Jan 4 at 17:20
  • ...of another story about a mouse that wears gloves.
    – supercat
    Jan 4 at 17:20
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I researched this topic recently as I was curious myself. I found that only the first version of Mickey, which was called Mortimer, is or will be in the public domain shortly. This is the character featured in "Steamboat Willie". The original Mickey mouse (aka Mortimer) character does not wear gloves or red shorts and does not have any pupils. This character was created by Walt Disney and Ub Iwerks after Walt lost legal rights to his first successful cartoon "Oswald the Rabbit" to a reputable film studio in 1928.

The Mickey mouse (pupils, gloves, red shorts, and yellow shoes) everyone is familiar with is still under trademark and other protections.

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    There was no commercially viable television technology in the late 1920s, much less any "large television networks."
    – phoog
    Jan 4 at 8:04
  • @phoog updated my answer to reflect that is was a reputable film studio (universal) instead of a large television network.
    – Full Array
    Jan 4 at 14:31
  • This answer seems incorrect in light of other 1928 material that's (presumably) now in the public domain. Here's a version of Mickey in color from 1928, identified by name: reuters.com/article/idUSBRE8AT04H
    – Milo P
    Jan 4 at 19:09
  • @MiloP i disagree. The poster is not relevant as it is the version of Steamboat Willie that's going on the public domain. Steamboat Willie was also released on 1928. The link you shared says very clearly that it is "believed" to be the earliest poster of Mickey Mouse implying they were not 100% either. Here is the note that states the Mickey Mouse (AKA Mortimer in 1928) version featured on Steamboat Willie hit the public domain on Jan 1, 2024. cnn.com/mickey-mouse-horror-movies-public-domain/….
    – Full Array
    Jan 5 at 2:38
  • @MiloP in addition to my last comment, the mickey mouse version on Steamboat Willie was called Mortimer Mouse. It wasn't called Mickey Mouse originally as the poster on your link showed. It is not exactly clear when the name Mickey Mouse was adopted. I searched this topic, and I couldn't find a reputable source.
    – Full Array
    Jan 5 at 2:49

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