While I agree with you in principle, some of the specifics I take issue with:
1. Writing new Mickey stories - This is an odd legal/moral area for me. It's not unreasonable for Disney to want to protect Mickey and if you wrote a Mickey story, it's possible that people could feel that a 3rd party product is endorsed by Disney. That could affect Disney's future business. Distributing Steamboat Willy on YouTube will not.
2. Mickey Mouse ears - Pretty clearly a trademark violation. Outside of the ___domain of copyright entirely.
I don't mean to nitpick, but I don't think it helps to confuse different types of intellectual property in this discussion. Steamboat Willy is a discreet work of art that should enter the public ___domain. As should all other works from that time. That is good for society and really has no bearing on anyone's ability to create commercially viable works of art (other than derivative works such as a Steamboat Willy stage play or novelization).
The brand of Mickey is separate and Disney has a legitimate (though perhaps not legitimate enough, I'll admit) interest in protecting it. Part of the problem is they are deceiving people into conflating the two issues to protect a supplementary revenue stream and control their brand.
> t's possible that people could feel that a 3rd party product is endorsed by Disney.
No it isn't, that isn't how the world works. If you take public ___domain material and utilize it in your own way there is no semblance of reason to think the original creator of said material endorsed you. I don't know if you are talking about how we are now living in a world where basically nobody alive has experienced material entering public ___domain, but it isn't a nebulous area.
I'm talking about a world where the character is a trademark, a distinctive brand in and of itself and where the "creator" is no longer a living person, but a corporation that continues to create work with the characters. Steamboat Willy is a distinct piece of art. However, the characters in it have become brands unto themselves.
The world of trademark and copyright are colliding in a new way here if Steamboat Willy were to enter the public ___domain. Can you seperate the trademark "Mickey Mouse" from the work "Steamboat Willy"? Does the fact that some Mickey Mouse cartoons are in the public ___domain mean that Mickey Mouse the character is in the public ___domain? And how does that affect works still being created with Mickey in them?
But that's beside the point. The point I want to make is that Disney wants us to be confused. They want us to conflate two distinct intellectual property issues. Steamboat Willy should be public ___domain, period. The repercussions of that are interesting, but really a separate area of law. Mixing the two only serves to support Disney's argument. Creative works such as films and books should enter the public ___domain -- as is and open to redistribution and use in derivative works -- after 14+14.
EDIT: Just to provide a concrete example, there are Disney films made during the Second World War (Spirit of '43) that are in the public ___domain. The character in this particular case is Donald Duck. Off the top of my head I know of no particular case law so perhaps it's never been challenged, but though it is certainly possibly to distribute, screen and create derivitive works of that film for free (I've done it myself at a summer screening of old movies we used to host when I was in college), I really don't know of anyone who's has distributed new Donald Duck movies or stories and gotten away with it. It does make me curious if they could, however.
The relevant case here is a recent decision regarding the Sherlock Holmes books published before 1923. The characters represented in those works (i.e. without later developments in still-copyrighted books) are in the public ___domain, and can be freely used in new stories. There's no reason to think that the same wouldn't apply to Micky and Donald.
There are also plenty of examples where new (and valuable) IP is still being created from material that no one (not even heirs) disputes is in the public ___domain.
How many remakes of Shakespeare, Jane Austen, heck, stories from Greek mythology and the Bible have been made? Lots.
As many have noted (including someone upthread), Disney itself strip-mined the public ___domain for many of its big-budget pictures.
> 1. Writing new Mickey stories - This is an odd legal/moral area for me. It's not unreasonable for Disney to want to protect Mickey
It's not "unreasonable" for the Sherlock Holmes estate to want to keep everything to do with that character too, but tough beans, they don't get to.
> and if you wrote a Mickey story, it's possible that people could feel that a 3rd party product is endorsed by Disney.
Disney is on the same footing as all other citizens in utilizing the public-___domain Mickey character. It's always possible when someone builds on a work that had entered the public ___domain for that new work to be attributed mistakenly to the original author. This isn't an excuse for the former copyright holder to have any additional rights over the work.
> 2. Mickey Mouse ears - Pretty clearly a trademark violation. Outside of the ___domain of copyright entirely.
Disagree, although this out of my area of expertise. The point of trademark is for brand/company recognition. Trademarks can't be made of "the idea of Mickey Mouse" once Micky has entered the public ___domain, so I don't see how Micky ears would violate it. I could trademark a particular 19th century drawing of Shakespere when used as a logo for my company, and it would be protected in that role on, e.g., packaging and advertisements. But that doesn't mean others can't sell reproductions of the painting or make t-shirts out of it.
Part of the problem is the character isn't exactly copyrighted. It is the reason why we just had a recent lawsuit about Sherlock Holmes. You are free to create a book or movie about Sherlock Holmes. Just don't use any of the info from the last few books in the series.
I think that Disney should be able to protect Mickey in a trademarked way, and do it at a cost. But it is going to be more complicated than "you can't use the characters"
But you can trademark a logo or other distinctive marking. For example, I cannot trademark the baseball cap, but I could trademark a team logo's presence on said hat. I don't know, but I would expect a court to side with Disney on that issue.
1. Writing new Mickey stories - This is an odd legal/moral area for me. It's not unreasonable for Disney to want to protect Mickey and if you wrote a Mickey story, it's possible that people could feel that a 3rd party product is endorsed by Disney. That could affect Disney's future business. Distributing Steamboat Willy on YouTube will not.
2. Mickey Mouse ears - Pretty clearly a trademark violation. Outside of the ___domain of copyright entirely.
I don't mean to nitpick, but I don't think it helps to confuse different types of intellectual property in this discussion. Steamboat Willy is a discreet work of art that should enter the public ___domain. As should all other works from that time. That is good for society and really has no bearing on anyone's ability to create commercially viable works of art (other than derivative works such as a Steamboat Willy stage play or novelization).
The brand of Mickey is separate and Disney has a legitimate (though perhaps not legitimate enough, I'll admit) interest in protecting it. Part of the problem is they are deceiving people into conflating the two issues to protect a supplementary revenue stream and control their brand.