Harvard Law Expert Details Disney’s Role in Shaping U.S. Copyright Law to Safeguard Iconic Characters

October 16, 2023, marks 100 years since Walt and Roy Disney founded Disney Brothers Studio, an animation company that evolved into a global entertainment powerhouse valued at $145 billion. Over the past century, Disney has produced beloved characters such as Mickey Mouse, Winnie the Pooh, Piglet, and Christopher Robin, captivating audiences worldwide.

Beyond its creative achievements, Disney has been a formidable defender of its intellectual property rights. The company has pursued numerous lawsuits against alleged copyright and trademark infringements, including a notable 1989 incident where it threatened legal action against three Florida daycare centers for murals featuring Disney characters.

Disney’s influence extends beyond litigation; it has actively lobbied for federal legislation to prolong copyright protections. The 1998 Sonny Bono Copyright Term Extension Act, often dubbed the "Mickey Mouse Protection Act," lengthened copyright terms for new works and extended renewal periods for pre-1978 publications, reflecting Disney’s vested interest in safeguarding its intellectual property.

Despite these protections, some early Disney characters, including Steamboat Willie (an early Mickey Mouse iteration) and A.A. Milne’s Winnie-the-Pooh, have entered or are nearing entry into the public domain. This transition has enabled new creators to utilize these characters, sometimes in controversial ways.

Rebecca Tushnet, the Frank Stanton Professor of the First Amendment at Harvard Law School, spoke with Harvard Law Today about Disney’s century-long impact on U.S. copyright law and the legal considerations for creators working with public domain characters.

When asked about Disney’s influence on copyright law, Tushnet noted that Disney often operates through trade organizations rather than direct advocacy. She explained that large content owners tend to garner more sympathy when advocating for extended copyrights on behalf of individual artists.

Regarding Disney’s adaptations of classic fairy tales such as Cinderella and The Little Mermaid, Tushnet clarified that Disney owns the copyright only in its unique expression of these stories — including specific visuals and non-traditional plot elements. Other creators remain free to produce their own versions, provided they avoid Disney’s distinctive artistic contributions.

Addressing the public domain status of characters like Winnie the Pooh and Steamboat Willie, Tushnet emphasized that anyone can reproduce these works or create derivative works using only the public domain elements. She cited the example of a Winnie the Pooh horror movie that carefully avoided visuals still protected by copyright, as some Pooh books were published later and remain under protection.

Tushnet highlighted the complexity introduced by trademark law, which continues to protect characters even after copyright expiration, provided Disney maintains the necessary filings. This protection can limit how others use public domain characters, particularly in commercial contexts.

She observed that while Disney might not legally prevail in lawsuits against uses of public domain images on merchandise like lunchboxes, the company is likely to mount vigorous legal defenses. The Supreme Court’s decision in Dastar Corp. v. Twentieth Century Fox Film Corp. affirmed that once copyright expires, others may use the work without attribution, as long as they do not misrepresent the source. However, the practical application of this ruling remains unsettled due to the rarity of works entering the public domain in recent decades.

Tushnet concluded that the contours of public domain use and trademark enforcement are still evolving, especially as more iconic characters transition out of copyright protection. Creators interested in leveraging these characters must proceed cautiously to navigate the overlapping legal protections.

As Disney commemorates its 100th anniversary, the interplay between copyright law, trademark rights, and creative expression continues to shape the legacy and future use of its most cherished characters.