Haynes and Boone, LLP Partner Jennifer Lantz talked with Bloomberg Law about how trademark law could clash with public domain as the copyrights expire for classic movie franchises like Peter Pan.

Here is an excerpt:

The copyright for the 1924 silent film Peter Pan expired Jan. 1, putting it in the second batch of works to enter the public domain after a two-decade moratorium imposed by Congress. That means anyone can copy the film’s images, characters, dialogue and story lines, even if they appear in more recent works still protected by copyright.

Owners of valuable franchises going public will look to other intellectual property laws to at least partially protect them, which could create a gray area where rights collide, attorneys say. The importance of that gray area will only expand in 2024 when the original Mickey Mouse joins the parade into the public domain. Many link protection of Mickey, a brand worth billions to Disney, to the law that created the moratorium.

Owners of expiring copyrights with commercial value have already begun adding new layers of protection, trademark attorney Jennifer M. Lantz of Haynes and Boone, LLP said. For example, Disney began using a clip of Mickey Mouse from the 1928 animation Steamboat Willie in pre-movie introductions of its other films—where it can function as a trademark the way the 20th Century Fox lion roar does.

“They’re going to be relying on trademark law and other kinds of consumer protection laws and theories to keep even content that might have gone into the public domain from being used freely,” said Lantz, who works in her firm’s media and entertainment practice. “I think that’s the gray area.”

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