How to Sidestep Saying “See Ya Real Soon” to the Public Domain: Using Droit D’auteur to Justify a Trademark-Favored Treatment of Mickey Mouse

Abstract

Mickey Mouse is one of the most recognizable characters in the world, but this famous character will be passing into the public domain when his copyright expires in 2024. The Walt Disney Company also has registered Mickey Mouse as a trademark. Thus, when Mickey passes into the public domain, an interesting conflict between copyright and trademark law will arise, and it is unclear which area of intellectual property law should determine the protections, if any, afforded to Mickey. France’s droit d’auteur, or “author’s rights,” offers a possible solution: when an author’s exploitation rights expire, the author’s moral rights continue to exist indefinitely, protecting the author from potential harmful uses of his or her creation. This scheme is similar to the way trademark law continues to protect trademarks so long as they are used in commerce. By marrying the concepts, trademark law would have a basis to supersede copyright’s public domain. Although there would be restrictions to prevent goodwill-damaging uses, the various trademark defenses would remain available to public domain users. Thus, allowing trademark law to govern in the public domain would encourage derivative works and thriving creativity while still protecting goodwill for generations to come.