The art will also have to use the characterization of Mickey Mouse as he appeared in Steamboat Willie. More modern depictions would still be protected.
I have noticed that Disney has recently started using an actual clip of Steamboat Willie as a trademark for Walt Disney Animation Studios. This seems to be a hedge against expiration of the copyright.
It's a grey enough area that the better lawyers would win in any dispute. And Disney has the best.
It's much safer to simply shove Mickey down the memory hole, and create an original character that isn't going to draw so much high-caliber, high-explosive, armor-piercing fire.
As I mentioned in a related response, I do see the reasoning in the 'Steamboat Willie' distinction, but that's why I mentioned a story or a song. Those don't actually have visual depictions of Mickey Mouse...the character itself of Mickey Mouse as a concept would be invoked, and the audience's imagination would have to fill in the visualization. I'm not saying it's perfect, but it's a hypothetical avenue whereby having Mickey Mouse in the Public Domain actually has downstream artistic applications, and ones that Disney's own lawyers would hopefully look at and say, "Well, shucks, this totally skirts our protection avenue" because, well, if they're the best lawyers, then they'd be obligated to avoid frivolous lawsuits.
I think it's important for artists to continually needle and wrestle with commercial enterprises for the sake of art and entertainment. Mickey Mouse just so happens to be the most visible target, well, other than Happy Birthday. And, furthermore, I'd argue that RIAA (WB) lawyers are easily as skilled and talented as any that could be found at Disney, and if this case goes the way of the Plaintiffs, it'll show that yes, it is possible to challenge and win.
Giving up just doesn't sound like very much fun to me.
Have you ever seen Sergeant York? No? The film, which is based on historical accounts from World War I, describes Sgt. York's technique for taking down an entire flock of geese, as applied to German machine-gunners.
You never take out the leader first. If the leader goes down, the rest of the flock scatters. You shoot the one furthest back. Then second from the back. And so on, from back to front, until they are all down.
It isn't fun to undermine every last little support before attacking the central pillar, but if you want to accomplish your goal, that's the most certain way to do it. So when those first Disney Bros. 'toons go public domain, you don't go after Mickey right away. First, you take back Pete. Then, you take back Minnie. Take back Clarabelle and Horace. Then, just when it looks like you might take Mickey, too, you plop Oswald down in his place.
In fact, it might be funny to just edit Mickey out of Steamboat Willie entirely, and replace him with a digital Oswald. Every time another Mickey Mouse short goes public domain, stick Oswald in there. Erase Mickey from history, from back to front. If the trademark isn't there, there's no possible trademark claim.
I have noticed that Disney has recently started using an actual clip of Steamboat Willie as a trademark for Walt Disney Animation Studios. This seems to be a hedge against expiration of the copyright.
It's a grey enough area that the better lawyers would win in any dispute. And Disney has the best.
It's much safer to simply shove Mickey down the memory hole, and create an original character that isn't going to draw so much high-caliber, high-explosive, armor-piercing fire.