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COLUMN ONE

Whose mouse is it anyway?

Disney disputes a former worker's claim that a trademark goof means an early incarnation of Mickey is public property.

August 22, 2008|Joseph Menn | Times Staff Writer

He is the world's most famous personality, better known in this country than anyone living or dead, real or fictional. Market researchers say his 97% recognition rate in the U.S. edges out even Santa Claus.

He is the one -- and, for now, only -- Mickey Mouse.

As Mickey turns 80 this fall, the most beloved rodent in show business is widely regarded as a national treasure. But he is owned lock, stock and trademark ears by the corporate heirs of his genius creator, Walt Disney.

For The Record
Los Angeles Times Saturday, August 23, 2008 Home Edition Main News Part A Page 2 National Desk 1 inches; 59 words Type of Material: Correction
Mickey Mouse: The headline for Friday's Column One on a copyright controversy over Mickey Mouse referred to a claimed "trademark" goof. In fact, it should have said "copyright" goof. Also, the article and a graphic caption transposed the name of the company that recorded the "Steamboat Willie" cartoon. It should have said Powers Cinephone System, not Cinephone Powers System.

Brand experts reckon his value to today's Walt Disney Co. empire at more than $3 billion. Acts of Congress have extended Mickey's copyright so long that they provoked a Supreme Court challenge, making Mickey the ultimate symbol of intellectual property.

All signs pointed to a Hollywood ending with Disney and Mickey Mouse living happily ever after -- at least until a grumpy former employee looked closely at fine print long forgotten in company archives.

Film credits from the 1920s revealed imprecision in copyright claims that some experts say could invalidate Disney's long-held copyright, though a Disney lawyer dismissed that idea as "frivolous."

Although studio executives are not yet hurling themselves from the parapets of Sleeping Beauty's castle, the unexpected discovery raises an intriguing question: Is it possible that Mickey Mouse now belongs to the world -- and that his likeness is usable by anybody for anything?

For the record, any knock-offs would have to make clear that they did not come from Disney, or else risk violating the separate laws that protect trademarks. And the potentially free Mickey is not the most current or familiar version of the famous mouse.

Copyright questions apply to an older incarnation, a rendition of Mickey still recognizable but slightly different. Original Mickey, the star of the first synchronized sound cartoon, "Steamboat Willie," and other early classics, had longer arms, smaller ears and a more pointy nose.

The notion that any Mickey Mouse might be free of copyright restrictions is about as welcome in the Magic Kingdom as a hag with a poisoned apple. Yet elsewhere, especially in academia, the idea has attracted surprising support.

"That 'Steamboat Willie' is in the public domain is easy. That's a foregone conclusion," said copyright scholar Peter Jaszi of American University's Washington College of Law after studying the issue at The Times' request.

The issue has been chewed over by law students as class projects and debated by professors. It produced one little-noticed law review article: a 23-page essay in a 2003 University of Virginia legal journal that argued "there are no grounds in copyright law for protecting" the Mickey of those early films.

Roger Schechter, a George Washington University expert on copyright, called the article's argument "a plausible, solid, careful case." By contrast, a Disney lawyer once threatened the author with legal action for "slander of title" under California law. No suit was filed.

No one expects Disney, which declined interview requests, to surrender Mickey without an all-out legal brawl. And the cost of what has been an academic exercise would soar if moved into a federal courtroom.

"Law and equity might line up on the side of forfeiture," said Michael J. Madison, associate dean of the University of Pittsburgh School of Law. But "Disney has enough ammunition on its side to dissuade all but the most well-financed competitor, or any but the most committed public-interest advocates, from challenging Mickey."

The story begins once upon a time, when a longtime Disney devotee dared awake the dragon in the Disney company's powerful legal department.

--

Gregory S. Brown, 51, a former Disney researcher who has lived in the same one-bedroom apartment in Hollywood for two decades, seems an unlikely giant-killer.

Thin, pale and bespectacled, he looks the part of an obsessive archivist. He has worked little since a heart attack in 1998, getting by mostly on disability payments.

As a child, Brown was intrigued by a book on the hard slogging by Walt Disney and his brother Roy to establish themselves in the early days of film and animation. That launched a lifelong fascination with the business side of the Disney empire.

While in high school, Brown visited Disney offices to research a term paper and ended up getting hired as an assistant to Disney archivist David R. Smith in 1974. Brown helped catalog correspondence between the Disney brothers and had access to other internal records.

Brown was struck by the early disorganization of the Disneys. It took years, for example, for the brothers to decide whether their company should be a corporation, a proprietorship or a partnership.

Brown moved on from Disney to UCLA, the American Film Institute and a brief and unremarkable producing career, and then he teamed with a friend in a 1980s takeover bid for Harvey Productions -- home of Casper the Friendly Ghost.

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