IP and Free Falling

Lawyers already have their own language, and there are also many overreaching words expended in the universe of IP causing confusion. And like dark clouds, they have people running for cover.

We see it in the headlines of case law defenses, general commentary, and headlines like: “Mickey Mouse and The Great Gatsby enter the public domain.” Cue the memes, the merch, the videos and the misunderstandings – and worse yet, the misplaced direction of internal panic.

Yes, we are talking about copyright termination rights. This is one of the lesser-known—but incredibly powerful—rights and nuances in U.S. copyright law. This provision gives authors (and their heirs) a second chance to reclaim rights to their work, even if they signed them away decades earlier.

Principally, under the U.S. Copyright Act, creators who assigned or licensed their rights can later “terminate” those transfers and regain control. The idea is simple: Many creators sign contracts when they have little bargaining power, only to see their work grow in value years later. Termination rights allow them to revisit those deals. Now of course there are nuances this process (for which you should contact a highly skilled lawyer).

But this process, which helps people like artists, musicians, and writers, allows such a  termination right that can potentially be revenue changing to the then-existing rights holder. The termination right has allowed bands to reclaim rights to classic albums, authors to regain control over books, and screenwriters to renegotiate terms with major studios. It represents a crafted balance in copyright law: Protecting both commercial interests and long-term fairness for creators.

So, what are rights owners to do when they haven’t planned for these types of common and uncommon situations?

A work that falls into the public domain isn’t just academic or mere trivia. They’re strategic flashpoints. As more iconic works from the 20th century lose copyright protection in the US, that translates to potential brand equity dilution, copycat exploitation, and marketplace confusion—unless you’ve already laid the groundwork.

Note that the public domain “concept” does not apply to trademarks in the United States.

Trademark rights last forever if one continues to use their mark in interstate commerce. This is unlike copyright or patents, where use or exploitation is not the key factor in the retention of rights.

But as counsel, if you’re advising content-rich companies—media, consumer products, education, publishing, hospitality, entertainment—it is best to have a “map” and timeline of  what rights may be of issue and what the plan is to avoid an IP DEFCOM 5 situation.

Not next year.

Not after something goes awry.

Not when social media posts tell you.

Now.

Copyright’s Deadlines are Your Strategy Motivator

We know the rules. Copyright protects original works of authorship—scripts, books, characters, packaging, artwork—but those protections eventually run out. For individual creators: Life + 70 for works created on or after Jan. 1, 1978. For anonymous works, pseudonymous works, or works made for hire, the term is 95 years from publication or 120 years from creation, whichever is shorter.

As so, the duration of copyright protection varies depending on the date a work was created, and accordingly older works have shorter terms.

Great for cultural remixers. Risky for brand stewards.

What clients don’t always understand—and what too many legal teams overlook—is that when copyright ends, it doesn’t mean all legal protection disappears. That’s where trademarks can pick up the slack.

Unlike copyright, trademarks don’t have a fixed term. As long as a mark is used in commerce and maintained properly, it can be enforced indefinitely. Which means if the public still associates that work, logo, character, or phrase with your client’s brand, you may still have legal ground to protect it.

That is where registration is key—and only if you’ve registered the right things.

Counsel’s Role: Move from Reactive to Proactive

The public domain is an open invitation for competitors, knockoff artists, and opportunists.

If your clients have legacy assets, now is the time to:

• Audit which characters, visual elements, slogans, product packaging, or series names are functioning as source identifiers.
• Review copyright expiration timelines in parallel with brand expansion plans.
• Preemptively file trademark applications for names, logos, and designs before they hit the public domain—when confusion is still clearly in your client’s favor.

Waiting until infringement or legal “redirection” happens is expensive. And trying to file once a work is already widely reused? Often too late. The window for clean enforcement closes fast.

This is especially important with generative AI tools now scraping public domain content for remixing. Your client’s “vintage character” may resurface in a form they never approved—but which consumers think is affiliated.

Without trademark protection in place, you’re stuck explaining that maybe other recourse is not a viable option.

Avoid that meeting.

Case in Point: The Mouse with a Trademark

We all saw it: Steamboat Willie hits the public domain, and suddenly the early version of Mickey Mouse is everywhere. But Disney didn’t panic. Why?

Because they’ve spent decades building layered trademark protection—covering modern Mickey designs, character names, merchandising categories, and audiovisual content. That portfolio gives them the right to shut down confusing use even if the original cartoon is theoretically fair game under copyright law.

Takeaway? You don’t need to be a big company to think big.

Any company that’s spent time and money building brand recognition around a creative asset—whether it’s a fictional universe, a series of educational characters, a nostalgic logo, or a well-loved slogan—should be treating trademarks as an extension of copyright. One doesn’t replace the other. They work best in tandem.

Counsel should be Counseling!

So…where does one start?

With a simple question: What creative assets does your client rely on to signal trust, quality, or consistency in the market? What are the crown jewels in your portfolio?

Then ask: Will those assets still be protected five years from now? Ten years? Twelve months?

Some things to think about as you clock into your IP timecard:

• Educate your business and marketing units on the value of preemptive trademark registration and monitoring of media and consumer campaigns.
• Coordinate with your IP counsel to ensure brand portfolios include all aspects of what you are trying to protect such as visual elements, character names, and product identifiers—again content may be an issue, but if it’s a character in the content it may be eligible for trademark protection (think Mickey Mouse again…).
• Document commercial use that supports secondary meaning, especially for stylized elements that aren’t inherently distinctive.
• Set calendar alerts tied to copyright expiration dates—so trademark applications don’t get left out of the lifecycle.

Because by the time a client forwards you an Etsy link to a bootleg version of their character and asks, “Can we stop this?”—you should already know the answer.

Closing Argument: Front and Center Before You Back-Up

Your IP serves as your baseline for not just your creative assets—but as your calling card to your customer base. It is a source identifier.

Lawyers have a role to play with their company and/or their clients to prevent a crisis by making sure their IP is left in lost and found or with a “free” sign next to it.

So, get out the flowcharts and maps and dig in the archives—because the most valuable brands know what to pack before the journey begins.

And that navigation starts with you: The tangible protecting the intangible.

Disclaimer: The information contained in this article is solely for informational purposes only and does not constitute legal advice or form an attorney-client relationship between you and Belous Law Corporation in any manner and is not an offer to represent any party. All content is provided as is and may not be disseminated without written permission.  The content of this article may be considered Attorney Advertising, as legally applicable.