No one is better at conveying the power of the public domain than #JenniferJenkins and @thepublicdomain, who run the #DukeCenterForTheStudyOfThePublicDomain. For years leading up to 2019, the pair published an annual roundup of what we *would* have gotten from the public domain in a universe where the 1998 Act never passed. Since 2019, they've switched to celebrating what we're *actually* getting each year. Last year's was a *banger*:

https://pluralistic.net/2022/12/20/free-for-2023/#oy-canada

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But while there's been moderate excitement at the publicdomainification of "Yes, We Have No Bananas," AA Milne's "Now We Are Six," and Sherlock Holmes, the main event that everyone's anticipated arrives on January 1, 2024, when #MickeyMouse enters the public domain.

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The first appearance of Mickey Mouse was in 1928's #SteamboatWillie. Disney was critical to the lobbying efforts that extended copyright in 1976 and again in 1998, so much so that the 1998 Act is sometimes called the #MickeyMouseProtectionAct. Disney and its allies were so effective at securing these regulatory gifts that many people doubted that this day would ever come. Surely Disney would secure another retrospective copyright term extension before Jan 1, 2024.

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I had long arguments with comrades about this - people like @gutenberg_org founder #MichaelSHart (RIP) were fatalistically *certain* the public domain would never come back.

But they were wrong. The public outrage over copyright term extensions came too late to stave off the slow-motion arson of the 1976 and 1998 Acts, but it was sufficient to keep a third extension away from the USA.

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Canada wasn't so lucky: #JustinTrudeau let Trump bully him into taking 20 years' worth of works out of Canada's public domain in the revised #NAFTA agreement, making swathes of works by living Canadian authors illegal at the stroke of a pen, in a gift to the distant descendants of long-dead foreign authors.

Now, with Mickey's liberation bare days away, there's a mounting sense of excitement and unease.

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Will Mickey *actually* be free? The answer is a resounding YES! with a few caveats). In a prelude to this year's public domain roundup, Jenkins has published a full and delightful guide to The Mouse and IP from Jan 1 on:

https://web.law.duke.edu/cspd/mickey/

Disney *loves* the public domain. Its best-loved works, from *The Sorcerer's Apprentice* to *Sleeping Beauty*, *Pinnocchio* to *The Little Mermaid*, are gorgeous, thoughtful, and lively reworkings of material from the public domain.

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Disney loves the public domain - we just wish it would *share*.

Disney loves copyright's other flexibilities, too, like fair use. Walt told the papers that he took his inspiration for *Steamboat Willie* from #CharlieChaplin and #DouglasFairbanks, making #FairUse of their performances to imbue Mickey with his mischief and derring do. Disney loves fair use - we just wish it would *share*.

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Disney loves copyright's *limitations*. *Steamboat Willie* was inspired by #BusterKeaton's silent film #SteamboatBill (titles aren't copyrightable). Disney loves copyright's limitations - we just wish it would *share*.

As Jenkins writes, Disney's relationship to copyright is wildly contradictory. It's the poster child for the public domain's power as a source of inspiration for worthy (and profitable) new works.

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It's also the chief villain in the impoverishment and near-extinction of the public domain. Truly, every pirate wants to be an admiral.

Disney's reliance on - and sabotage of - the public domain is ironic. Jenkins compares it to "an oil company relying on solar power to run its rigs." Come January 1, Disney will *have* to share.

Now, if you've heard anything about this, you've probably been told that Mickey isn't *really* entering the public domain.

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Between #trademark claims and later copyrighted elements of Mickey's design, Mickey's status will be too complex to understand. That's *totally* wrong.

Jenkins illustrates the relationship between these three elements in (what else) a Mickey-shaped Venn diagram. Topline: you can use all the elements of Mickey that are present in *Steamboat Willie,* along with *some* elements that were added later, *provided* that you make it clear that your work isn't affiliated with Disney.

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Let's unpack that. The copyrightable status of a character *used* to be vague and complex, but high-profile cases have brought clarity to the question. The big one is #LesKlinger's case against the #ArthurConanDoyle estate over #SherlockHolmes. That case established that when a character appears in both public domain and copyrighted works, the character is in the public domain, and you are "free to copy story elements from the public domain works":

https://freesherlock.files.wordpress.com/2013/12/klinger-order-on-motion-for-summary-judgment-c.pdf

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This case was appealed all the way to the Supreme Court, who declined to hear it. It's *settled law*.

So, which parts of Mickey aren't going into the public domain? Elements that came later: white gloves, color. But that doesn't mean you can't add *different* gloves, or *different* colorways. The idea of a eyes with pupils is not copyrightable - only the specific eyes that Disney added.

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Other later elements that don't qualify for copyright: a squeaky mouse voice, being adorable, doing jaunty dances, etc. These are all generic characteristics of cartoon mice, and they're free for you to use. Jenkins is more cautious on whether you can give your Mickey red shorts. She judges that "a single, bright, primary color for an article of clothing does not meet the copyrightability threshold" but without settled law, you might wanna change the colors.

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But what about trademark? For years, Disney has included a clip from *Steamboat Willie* at the start of each of its films. Many observers characterized this as a bid to create a de facto perpetual copyright, by making *Steamboat Willie* inescapably associated with products from Disney, weaving an impassable web of trademark tripwires around it.

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But trademark doesn't prevent you from using *Steamboat Willie*. It only prevents you from misleading consumers "into thinking your work is produced or sponsored by Disney." Trademarks don't expire so long as they're in use, but uses that don't create confusion are fair game under trademark.

Copyrights and trademarks can overlap. Mickey Mouse is a copyrighted character, but he's also an indicator that a product or service is associated with Disney.

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While Mickey's copyright expires in a couple weeks, his trademark doesn't. What happens to an out-of-copyright work that is still a trademark?

Luckily for us, this is also a thoroughly settled case. As in, this question was resolved in a *unanimous* 2000 Supreme Court ruling, Dastar v. Twentieth Century Fox.

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A live trademark does *not* extend an expired copyright. As the Supremes said:

> [This would] create a species of mutant copyright law that limits the public’s federal right to copy and to use expired copyrights.

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