Using famous cartoon characters on products or in artworks

One question which the European IP Helpdesk receives quite regularly relates to the use of well-known fictional characters such as the Grinch, Tintin or the Smurfs on products such as clothes, items such as mugs or even creative works of art. While most people who come to us with this kind of question understand that there are intellectual property rights involved and covering these characters, it is quite common for them to lack understanding of when and how they can be used, if they can be used at all! The topic received high publicity a few months ago with the announcement that Mickey Mouse had fallen into the public domain, leading to a wide range of new artworks created by people taking advantage of the new availability of the character. Many (including the media reporting on the topic) misunderstood the implications that this had.

In this blog post, we are therefore going to try to shed some light on the topic, explaining what the public domain is, why you should still be careful when using copyright-protected works which to the best of your knowledge are now in the public domain, and when and how you can use (or reuse) well know cartoon characters in your own artworks or products.

• What does “public domain” mean and how do intellectual property rights expire?

Every year on January 1^st, copyright over long-protected works, books and songs expire and they enter into what is known as the “public domain”. While this happens every year, seldom has this phenomenon been as publicised and talked about than this year 2024 for a simple reason: as mentioned above, one of the most famous and recognisable cartoon characters in the world is now in the public domain: Mickey Mouse! Actually, despite what many may have heard or read, that is not quite the case since – as always – the law is a bit more complicated than what newspapers claim.

As you most probably know if you are reading us, intellectual property rights are a set of rights which grant their owner an exclusive right over an intangible asset (hence “intellectual” property). Intellectual property rights are varied, each of which protects a different type of intangible element: patents and utility models protect inventions, industrial designs protect designs, trade marks protect the elements of a brand such as a product or company name or logo, and copyright protects original literary and artistic works.

None of these rights however are permanent: they are limited in time. Without going into technicalities, one reason for this is that while the exclusive rights granted to those who produce IP is an incentive to the creation of new inventions, products and works of art, these exclusive rights should be limited in time so that after a while the whole of society can take advantage of this new creation, and people are incentivised to keep coming up with new intellectual creations. Once an IP right expires, the very intellectual asset it protected is now available to be used by the public, which is where the idea of “public domain” comes from: it now belongs to everyone.

The duration of IP rights is not entirely homogeneous and varies between countries and types of rights. In Europe, patents last for 20 years, industrial designs up to 25 years, trade marks 10 years (though they are the only type of IP rights which can be renewed indefinitely). Copyright lasts for a little bit longer… actually, it is a lot longer, as for most works it lasts up to 70 years after the death of the protected work’s author. [1]

So, what triggered all this news that Mickey Mouse had entered into the public domain? Well, the copyright over the first stop-motion movie which came out in 1928 involving the world’s most famous mouse finally expired, meaning that this particular movie is now in the public domain, i.e. anyone is free to copy, reproduce, or even modify it!

• Why you still have to be careful when using works even if they are in the public domain: copyright is not everything!

As you most probably have noticed, despite this momentous event, Mickey Mouse works, films or products not developed by Disney are not everywhere all of a sudden. There are mainly two reasons for this.

Firstly, even though the first film involving Mickey Mouse has now entered the public domain, this is not the case for all the other movies or comics which have come out since! These are still protected by copyright. This means that the only version of Mickey Mouse which is in the public domain is the one that appeared in this first movie. All subsequent works – and versions of Mickey Mouse – are still protected and off-limits and the appearance of Mickey Mouse in this first movie differs substantially from the one which we know today.

Secondly, and perhaps more importantly, it is important to remember that copyright is not the only type of intellectual property right involved! Mickey Mouse – like most other famous cartoon characters are not only protected via copyright but also as trade marks! This overlap between these two different types of IP rights is because they do not protect the same aspects of intellectual creation: copyright protects original works (meaning that you cannot copy them without the consent of the copyright owner), but trade marks protect signs which are used in relation to goods or services which are being sold on the market. As explained above, trade marks – while limited in time – can be renewed indefinitely by their owners provided that they use them. Mickey Mouse, the cartoon character included in the 1928 movie is now in the public domain, but Mickey Mouse, the well-known name and mouse are protected as trade marks. The consequence is that no one can use this famous character to sell products (such as books, movies, mugs) or provide services (such as running an entertainment park) using this name. The same applies to most other Disney characters, and other cartoon characters such as the Grinch, the Smurfs, Shrek, etc…

• So, can I use these characters and if so when and how?

Based on the above, it is clear that famous cartoon characters are unlikely to be available to be used freely by the public without the consent of their owners any time soon, and certainly not for as long as they remain highly popular – and therefore economically useful to the companies that can use them to generate revenue by keeping them protected via trade marks. However, there are really two main ways through which content creators, artists or even business can use these cartoon characters in their own activity:

• By obtaining the right to do so, asking for permission to the IP holders. This can be very complicated, mostly because the large corporations which own the trade marks and copyright over these characters may have few incentives to grant a licence to third parties to use these characters in a way they cannot control;
• By only using them in the ways which are permitted by very limited exceptions. IP rights grant a monopoly over intangible assets, meaning that third parties cannot use these assets without the consent of the right-holder, except in some situations and for specific purposes, such as parody, informative use or artistic expression “in accordance with honest practices” (i.e. not in a way that tries to benefit economically from the reputation of the trade mark you are copying). Outside of these limited exceptions, content creators and EU SMEs should refrain from using these well-known cartoon characters, as doing so is likely to infringe on intellectual property rights of the companies which own them. And do not be fooled, even if Mickey Mouse is now in the public domain, you cannot use the world’s most famous mouse as if Disney had lost its monopoly over it!

[1] The durations included here are correct for IP rights registered at EU level. They may be slightly different in other jurisdictions

Fun fact: while copyright expires for almost all works in all countries in the world, some works will actually never fall in the public domain, or have not when they should have. One example of this is the copyright for an original Peter Pan book in the UK which did not expire when it should have decades ago. Its author J.M. Barrie died in 1937 and in his will, he gave the copyright over his book “Peter Pan, or the Boy Who Wouldn’t Grow Up” to the Great Osmond Street Hospital, a Hospital located in London specialising in treating children, to fund the treatment of seriously ill children. The British Parliament decided to include a specific exception to copyright expiry for this book and the Great Osmond Street Hospital to this day still receives the royalties generated by the use of this book.