How Disney might have lost the Mickey Mouse copyrights

The 22 August LA Times has an interesting article on Disney's copyrights for Steamboat Willie and its substantially similar Mickey Mouse characters. The primary question is of simple copyright law: is the copyright registration for Steamboat Willie defective and thus is the character in the public domain? The more intriguing dilemma - if Steamboat Willie is in the public domain (argument below), can people sell substantially similar Mickey Mouse products and defend themselves by arguing that they are substantially similar to the uncopyrighted Steamboat Willie? Disney has trademarked "Mickey Mouse", so you would have to use a different name for a new product line based on using the public domain Steamboat Willie. The controversy starts with a copyright lawsuit involving one of the few Mickey Mouse movies not copyrighted, a 1933 short called "The Mad Doctor", for which someone was trying to sell animations cells. Disney lawyers rightfully pointed out that Mickey Mouse itself was still under copyright, so the cell seller couldn't sell. The loser, one Gregory Brown, consoled himself with an odd argument that the Disney lawyers had made - that Mickey Mouse had been created by Walt Disney Company in 1928. Problem. The company didn't exist in 1928. Whose name then is on the copyright forms? Digging around, Brown found a clue on the title card to the beginning of the "Steamboat Willie" cartoon that was released on a 1993 LaserDisc, which said: "Disney Cartoons Present A Mickey Mouse Sound Cartoon, Steamboat Willie - A Walt Disney Comic by Ub Iwerks, Recorded by Powers Cinephone System, Copyright MCMXXIX" MCMXXIX is the Disney's lawyer's 1929 reference - but to Steamboat Willie. Brown unsuccessfully tried arguing in his court case that any of these three parties (Disney, Iwerks, Powers) might claim ownership, an uncertainty that nullifies all ownership claims under the arcane rules of the Copyright Act of 1909. And since Steamboat Willie is so substantially similar to Mickey Mouse, if Willie is in the public domain, it makes it practically impossible for Disney to defend any copyright claims to substantially similar Mickey Mouse knockoffs. Fun stuff, huh. The judge ignored the argument for coming too late in Brown's case. However, in 1999, Arizona State University law student Lauren Vanpelt reviewed Brown's findings, and wrote/posted a paper "Mickey Mouse - A Truly Public Character," , in the public domain, pretty much agreeing with Brown - Willie. She concludes, quite powerfully and definitively (she is not a law professor yet): "Disney published its common law protected expression without the proper copyright notice attached to the films and on the club materials. The statute of limitations to rectify that omission has long since elapsed, as has the statute of limitations for Disney to file any infringement claims based on that omission. As a result of its omissions and inaction, Disney forfeited its copyright claims to Mickey Mouse. Mickey has fallen into the public domain where all are free to copy and enjoy him." Shortly thereafter, a Georgetown University law student, Douglas Hedenkamp, reviewed Vanpelt's paper, and did additional research at the Library of Congress, and agreed - there is too much ambiguity into who owns the copyrights to Steamboat Willie. And under the 1909 laws (courts rely on the laws at the time of something happening), the ownership must be unambiguous, which isn't the case here, a requirements courts have repeatedly upheld. A rough looking version of Hedenkamp's article is at:http://homepages.law.asu.edu/~dkarjala/OpposingCopyrightExtension/publicdoma in/HedenkampFreeMickeyMouseVaSp&E(2003).htm Hedenkamp concludes, again powerfully and definitively (he wasn't a law professor at the time :-), with: Ultimately, if all the material incorporated into the films published without notice is in the public domain, this means that the character Mickey Mouse is himself public domain material. Mickey would still be protected by the copyrights in his other films and products, but those copyrights would only extend to the new matter that is original to them. [FN161] The aspects of Mickey's image and character that were derived from the original public domain films cannot be protected by virtue of their inclusion in new works; this is true under both the 1909 Act and the Current Act. [FN162] This means that the public is free to exercise all of the rights that the Copyright Act would otherwise reserve to the holder of a valid copyright. [FN163] This includes the rights to copy, display and distribute the films, and to make, display and distribute derivative works based on those films and the Mickey Mouse character. [FN164] In response to a letter from Hedenkamp, Disney General Counsel Louis Meisinger wrote back saying the equivalent of "all of you are wrong", and threatened legal action if Hedenkamp went public. Fortunately Hedenkamp has balls and a knowledge of constitutional law (something IP lawyers are mostly forbidden to consider :-), and published an article in the 2003 edition of the Virginia Sports and Entertainment Law Journal. The end of the LA Times articles goes: Meisinger, the former general counsel, is now a Los Angeles County judge. Asked about the Hedenkamp article in an interview in his chambers, Meisinger gave an instant nod of recognition but ignored an invitation to take up the argument again. "Everything has to fall into the public domain sometime.", he said, then headed back to court. Which is a pathetic implicit concession that indeed Brown/Vanpelt/Hedenkamp are correct - Steamboat Willie is in the public domain. Since LA Times was able to write this article in 2008, five years after Hedenkamp's paper, with the question unresolved, is further support that Steamboat Willie is in the public domain. Disney rightfully zealously defends its intellectual properties, which apparently it can't do here as proved by the possibility of an article five years later in 2008. If Disney could have fixed the defect, it would have done so after Vanpelt's and Hedenkamp's papers - Disney has the money and legal brainpower to easily fix such problems. And the LA Times could have reported "Despite the controversy, in 200X, lawyers for Disney successfully reinstated the copyrights to its Steamboat Willie character." Question. How to have some fun with this (assuming one has lots of money to play litigation games)? Would it take setting up a Web site that freely distributes Steamboat Willie videos to upset Disney enough to have them file the copyright lawsuit that resolves this question? Or what would happen if someone wrote a letter to the Library of Congress, asking them who are the assigned names to Steamboat Willie? Is there a legal problem in accepting licensing money for a something that has now been shown to be unlicensable? Where is the professor Jon Duffy of the copyright academic world to file a lawsuit to force the issue? This case once again shows how much of a bag of hot air is the mind of Larry Lessig, since he could strike a great blow for all of his pretend copyright causes by doing something with Steamboat Willie that would force Disney to sue Larry.