The end of the copyright protection for Walt Disney’s 1928 short film “Steamboat Willie” – known as the first-ever appearance of Mickey Mouse – was met with great interest by the international media and among artists. Yet, a little-noticed international treaty has the unexpected effect of extending the protection for the film under the copyright law of Germany until 2058.
Within the EU, the Copyright Term Directive harmonises the term of copyright protection across the member states: At the end of the seventieth year after the death of an artist, the copyright protection of their works expires. Internationally, however, there is a patchwork of different copyright terms ranging from 30 years post mortem auctoris (today only in Somalia, historically also in many other countries, e.g. Germany until 1934) to 100 years (Mexico, the other outlier). In some countries, special copyright term extensions apply to war veterans (for example, under French and Russian copyright law, respectively, for the writer Antoine de Saint-Exupéry and the composer Sergei Prokofieff).
US copyright law again uses a completely different approach, providing a term of protection of 95 years after publication for works created before 1978. (In the meantime, US law has also switched to the usual formula, but this will only take effect in a few decades.)
To create what scholars call “material reciprocity” of copyright protection on the international level, the Berne Convention, an international treaty on copyright law, establishes the so-called Rule of the Shorter Term: Even if a “foreign” work would actually still be protected under the laws of a country, the copyright automatically expires at the end of the term in the country of origin.
Put in practice, the application of the Rule of the Shorter Term means that the copyright in Walt Disney’s 1928 short film Steamboat Willie, which famously expired under United States law after 95 years on 1 January 2024, automatically also expires in a country that calculates the copyright term differently, for example in the EU, which would otherwise protect the historic film for much longer, until 70 years after the death of the creators.
This would also be the case in Germany were it not for the Agreement between the German Reich and the United States of America on the Reciprocal Protection of Copyrights, an international treaty dating back to 1892 that is still in force today, and which guarantees American authors so-called “national treatment” under German copyright law. This means that the copyright term for their works within Germany is calculated using (only) the local formula, disregarding the Rule of the Shorter Term stipulated by the Berne Convention. And because the composer of the then ground-breaking new film score, Wilfred Jackson, only died in 1988, Steamboat Willlie will remain protected under German copyright law until the end of 2058 (the copyright term is calculated on the basis of the longest-living co-author of a work).
Diverging copyright terms are keeping the courts busy
Copyright scholars have been aware of this curious situation for quite some time, and the issue has already been addressed by the courts, e.g. in the case of Edgar Rice Burroughs’ original 1912 Tarzan novel. In 2024, however, this peculiarity of German-American copyright law yielded a particularly odd result. Under international copyright law, not only the Berne Directive, but also the TRIPS Agreement and the EU Copyright Term Directive expressly authorise member states to deviate from the Rule of the Shorter Term by means of bilateral international treaties.
One can now criticise the fact that the German legislator is granting copyright protection to a work long after the laws the home nation of the work no longer consider this necessary – in particular because this prevents German artists, unlike their American peers, from freely reproducing and drawing from the film in their own works. Furthermore, this situation is probably all but intentional, considering the fact that the 1892 treaty was only ‘silently’ revived in 1989 when the United States acceded to the Berne Convention, after previously having been superseded by the 1955 Universal Copyright Convention.
Meanwhile, the Walt Disney Company has reacted to the expiry of the copyright in Steamboat Willie by establishing a strong trademark protection through international trademark registrations for the original Mickey Mouse character (in black and white, with a long nose and without gloves) and by licensing a large number of corresponding merchandise – because trademarks, unlike copyright, do not have a fixed term of protection as long as they are being used in commerce.
