Is the Mickey Mouse with gloves under public domain?

Question

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.

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

Answer 1

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?.

Answer 2

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.

Answer 3

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.