How to Sidestep Saying "See Ya Real Soon" to the Public Domain: Using Droit D'auteur to Justify a Trademark-Favored Treatment of Mickey Mouse

INTRODUCTION"I only hope we never lose sight of one thing-that it was all started by a mouse."1 It is hard not to affiliate the Walt Disney Company (TWDC), a multibillion dollar corporation, with its iconic symbol, Mickey Mouse.2 Neverthe- less, we may be forced to do just that in 2024 when Mickey's copyright expires and the character passes into the public domain.3 Once this occurs, anyone will be free to use the original image of Mickey Mouse in movies, merchandise, novels, and other media without legal repercussions.4 But is this the right result? Under U.S. copyright law, works produced before 1978 are protected for a term of ninety-five years; once that period has expired, a work passes into the public domain, making it available for anyone to use.5 This concept of limited protection has deep roots: it is enshrined in the Copyright Clause of the U.S. Constitution, which guarantees creators protection of their works but only for "limited Times."6Nearly all countries employ some form of copyright protection, but many recognize these rights in different ways.7 France's legal principle of droit d'auteur, for example, gives a creator perpetual protection of his or her work-a right derived from the belief that the creator's own personality is both embedded in and expressed through his or her work.8 The concept of droit d'auteur bears similarities to both domestic and international trademark law in that it recognizes potentially perpetual rights to trademarked symbols.9As long as the trademarked symbol is used to identify the source of a work or good, it is protected against uses that could cause consumer confusion or dilute the reputation of the symbol.10 This element of trademark doctrine has striking similarities to France's droit d'auteur, which views the created symbol as a part of the owner's personhood; the law seeks to prevent the abuse or misuse of the symbol in a way that could be attributed inappropriately back to the owner.11When a creation has a dual status, an interesting conflict between copyright and trademark law arises.12Although Mickey Mouse originated as a copyright, both his name and his image grew to be a very prominent trademarked symbol of TWDC.13 In theory, when he enters the public domain, Mickey Mouse still will be registered as a trademark to TWDC, yet the public may have free reign in how it uses his image in its creations-potentially damaging the family-friendly reputation of TWDC.14Should Mickey be given special copyright protection similar to that of droit d'auteur? Does the overlap between copyright and trademark cover the conflict between the international theories? This Note attempts to address these issues in three parts. Part I provides a background of the dominant theories of intellectual property law in both the United States and continental Europe. It also provides a brief history of Mickey Mouse's origin. Part II compares U.S. copyright law to droit d'auteur. Additionally, it discusses the differences and overlap between U.S. copyright and trademark laws and their effects on the dual symbol and character of Mickey Mouse. Part III recommends that the U.S. intellectual property system view Mickey Mouse's unique position through the lens of trademark law, allowing the moral rights and personhood of TWDC to be protected in a manner similar to the rights afforded under droit d'auteur.I. BACKGROUNDProtection for tangible property is more easily conceptualized and rationalized than protection of intangible intellectual property.15 One of the primary reasons for an owner to protect his or her physical property is to preserve the property's value.16 Intellectual property differs because the value of intangible ideas is not so easily diminished.17 Multiple people in different places can use and enjoy the knowledge conveyed through intellectual property without decreasing its value.18 Thus, the protection of such useful ideas cannot be vindicated using the same economic reasons that a physical property owner would use. …