Public Domain Day 2024

It’s the annual Public Domain Day: the day that a bunch of older works enter the public domain. This year, works published in 1928 enter the public domain. There’s no way around it: this year is completely about Mickey Mouse. Steamboat Willie, the first widely available appearance of Mickey Mouse, has fallen into the public domain.

But steer carefully. Only a very specific depiction of Mickey has fallen into the public domain.

This is a significant moment because not long ago Disney spent a lot of lobbying effort and money to avoid it. The Copyright Term Extension Act in 1998 was heavily supported by Disney specifically to avoid Mickey Mouse’s depiction in Steamboat Willie from falling into the public domain. They weren’t the only ones involved, but they were the most prominent proponent of the extension.

Other works have enter the public domain as well, including classic literary works like Lady Chatterley’s Lover and All Quiet on the Western Front. It also includes some of the finest examples of silent film in The Man Who Laughs and The Passion of Joan of Arc.

But one needs to be careful using Mickey Mouse in their own works, as Disney still has newer versions and uses of the character protected. Only the earliest Mickey Mouse of Steamboat Willie fame is in the public domain. Any newer depictions, including his gloves and newer design elements, remain copyrighted. To complicate things, Disney has a trademark on Mickey Mouse, meaning one cannot slap him on merchandise if that leads a consumer into believing the merchandise was made by Disney.

But what one can do is distribute Steamboat Willie and make new art that depicts the characters in that fashion. Just make sure those Steamboat sequels don’t include modern Mickey, and get legal advice before selling specific merchandise.

Happy New Year and Happy Public Domain Day from the Law Firm of Dillon McCarthy!

Trade Dress Isn't a Catch-all

A reminder from the Third Circuit that trade dress, one of the least understood areas of intellectual property law, is not a catch-all to be used against competitors. Trade dress protects the decorative appearance of an object’s packaging or appearance, insofar as they signify the source of a product to consumers.

But this protection is only available for non-functional design elements. It cannot be used to stop competitors from putting out a similar competing product that has the same functionality. Patents protect functional design elements, and only last for a limited period of time.

So when the makers of Pocky, the dipped cookie sticks, sued the makers of Pepero, the Third Circuit ruled against them. Trade dress cannot protect useful features, like how a cookie is designed to be easy to eat as a snack. That’s good news for anyone looking for options when it comes to snack time.

Intellectual property can be complicated and technical. If you have any questions related to your own IP, contact the Law Firm of Dillon McCarthy.

Immoral Trademarks Fair Game

Today the United States Supreme Court issued a ruling in Iancu v. Brunetti. In doing so, they greatly expanded the kinds of trademarks that can receive federal protection. For the longest time the Langham Act, which governs federal trademark law, barred the registration of acts deemed disparaging, immoral, or scandalous. In 2017, this list was struck a blow when the court rules that banning protection for disparaging marks violated the First Amendment.

Erik Brunetti sought to trademark his clothing brand FUCT. It was rejected as immoral. A majority held that this constituted viewpoint discrimination, making it an unconstitutional constraint on free speech.

As of today there is a broader range of trademarks that can be protected. But that doesn’t make filing and obtaining this protection any easier. If you or your business need to file for trademark protection, The Law Firm of Dillon McCarthy is ready with the knowledge you need.