Star Wars and Mickey Mouse: How “Copyright Scarcity” Helped Create Two Iconic Franchises

This fall sees the return of Star Wars to the big screen, and begins a new era of stories with Star Wars: The Force Awakens.

Star Wars is truly a cultural phenomenon. So much so that the release of trailers for the movie become internet events, and are dissected scene by scene by fans trying to learn every shred of information that they can. Not bad for a film that cost $11 million to make, 1 but generated a franchise the Walt Disney Company paid $4 billion to acquire. 2 The first three movies have grossed a combined $1.8 billion, and the Star Wars “universe” is said to have “17,000 characters …inhabiting several thousand planets over a span of more than 20,000 years.” 3

And it almost didn’t happen at all.

Because George Lucas’ first plan was to remake Flash Gordon. According to Star Wars Producer Gary Kurtz, “[w]e tried to buy the rights to Flash Gordon from King Features [in 1971]. They weren’t adverse to discussing it, but their restrictions were so draconian that we realized right away that it wasn’t really a great prospect at the time.” 4

By that time, the first of the Flash Gordon serials would have been 35 years old, 5 and already in its “renewal term” of copyright protection. This is where those who call for drastically shorter copyright terms (as short as 14 years) are missing the point.

Those who wish to shorten copyright terms focus exclusively on the monetary reward that an author receives for their exclusive rights as their sole incentive to create. Since most copyrighted works soon exhaust their financial rewards, the argument goes that long copyright terms amount to a “perpetual copyright,” and do not spur the creation of new works. 6

In reality, the benefit of long copyright terms is that certain stories and characters stay “off limits” for an extended period of time, forcing you to create something new. This is the other side of copyright that never gets mentioned. The long copyright term forces the creation of new works, since uncreative rehashing and retelling old works is not permitted. Because “copyright scarcity” exists, the creation of these new works is clearly a public benefit that “promotes the progress…of the useful arts,” as required by the enabling clause of Article 1 Section 8.

So, if Flash Gordon had gone into the public domain, Star Wars would have never existed. Would Lucas’ Flash Gordon have been a good movie? All signs point to yes, but it would not have been the cultural phenomenon that Star Wars became.

Ask yourself a question: which would you rather have? A good remake of Flash Gordon? Or Stars Wars and everything that goes with it?

And this is not the first time this has happened.

Ask yourself another question: which would you rather have? Oswald the Lucky Rabbit? Or Mickey Mouse?

Yes, Walt Disney’s first successful cartoon character was not Mickey, but Oswald the Lucky Rabbit. 7 Yet, much to Walt’s horror, he found out that when he tried to negotiate a higher fee for creating this successful property, the contract the distributor signed with the studio totally cut Walt out of any ownership interest in the character. 8 The distributor had also hired Walt’s animators behind his back, and when Walt would not agree to a substantial reduction in the fees he would receive, the distributor basically fired Walt from working on his own creation. 9

So, Walt went back to California, and needing a cartoon character to compete with the already popular Oswald, created Mickey Mouse. 10

Oswald continued to be popular until the mid-1940’s, but he has been dwarfed (no pun intended) by the enormous world-wide success of Mickey Mouse.

But wait! Isn’t Walt Disney the great plunderer of the public domain? Not quite.

Mostly forgotten when the public domain origins of Snow White and the Seven Dwarfs are discussed is what a monumental risk Disney took. The conventional wisdom of the day was that audiences would not sit through a feature length cartoon, with at least one newspaper calling Snow White “Disney’s folly.” 11 Originally budgeted at $250,000, Snow White cost over $1.5 million (an astronomical sum in 1936), all of it borrowed from the bank. 12 “Walt… told a reporter ‘I had to mortgage everything I owned, including Mickey Mouse and Donald Duck and everybody else’ to make Snow White.13

Faced with all the naysayers and the enormous financial risk Disney was facing, it made sense that he go to a story that was already familiar to the public. “It was well known and I knew I could do something with seven screwy dwarfs.” 14

Yes, Snow White and the Seven Dwarfs is a centuries old story and was obviously in the public domain, but before committing to the project, Disney acquired the rights to a stage version of the story, to avoid any adverse claims. 15 Certainly Pinocchio and Cinderella were in the public domain when Disney made movies of them, but Bambi 16 and Dumbo 17 were not, and Disney purchased the necessary rights to both of them.

So remember, the public domain is supposed to benefit the public. Yet, as noted previously on this blog, the main beneficiaries of the public domain are the publishers and other resellers who will still charge you a fee for a copy of a work that it cost them nothing to acquire, and for which they pay no royalties to the author. 18 So, if the “progress of the useful arts” is truly the goal, then pushing works into the public domain as quickly as possible is a mistake, as all this will generate is continuing profit to the publishers, and a series of rehashing and retelling old material under the false heading of “creativity.” 19

So “copyright scarcity,” making certain expressions and stories “off limits,” along with the financial reward to the author, is what is truly responsible for generating new works, new characters and new stories that enhance our world-wide shared culture.


  1. Star Wars (film)
  2. How Disney Bought Lucasfilm–and Its Plans for ‘Star Wars’
  3. Id.
  4. ‘Star Wars’ Producer Blasts ‘Star Wars’ Myths
  5. Flash Gordon
  6. Eldred v. Ashcroft 537 U.S.186 at 243, dissenting opinion of Justice Breyer
  7. Neal Gabler, Walt Disney: The Triumph of the American Imagination, Alfred A Knopf, (2006) at 102-104
  8. Id. at 109
  9. Id.
  10. Id. at 114
  11. Walt Disney: The Triumph of the American Imagination at 270
  12. Id. at 265
  13. Id.
  14. Id. at 216
  15. Id. at 217
  16. Bambi, a Life in the Woods
  17. Dumbo
  18. Claiming Copyright in Public Domain Works: It’s Time to Put an End to Publishing Sleight of Hand
  19. Copying Is Not Creativity! Why Creative Artists Don’t Need the Public Domain

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