How Minions beat Disney at the copyright game

If aliens ever discover our deserted planet at some point in the future, they may mistake the Minions for a hieroglyphic language our species once used to communicate. The babbling sidekicks from Despicable Me and its spinoffs can be seen on Facebook mental health pages, on Instagram posts announcing a baby was born, and on the sides of landscaping trucks. They’re on party supply store balloon displays, bakery chalkboards, QAnon protest signs, and cannabis-dispensary window murals, where they all look higher than usual. My roommate brought off-brand, vaguely yellow Minion shot glasses home from a trip to the Florida Keys. I do not need an article 20 years from now to warn me that drinking from them may be detrimental to my health — they’re clearly unlicensed merch.

Compare that ubiquity to how aggressively Disney handles its trademarked characters. In 1989, The Walt Disney Company brought the legal hammer down on three Florida day cares for their murals featuring Mickey Mouse, Donald Duck, and other Disney characters. Disney demanded their removal. Nearly 10 years later, U.S. courts passed the Sonny Bono Act, an extension of various expiring copyrights, preventing them from becoming public domain. It was the first of its kind in America, and it’s colloquially known as “The Mickey Mouse Protection Act” due to its greatest benefactor — the company most known for fighting copyright expiration at any cost, and defending its brand regardless of public opinion.

Photo: Zack Kotzer for Polygon

Certainly that attitude has ruffled feathers. The day care injunctions were unpopular among Florida locals. Disney’s move was infamous enough to become the basis of a 2008 Simpsons Treehouse of Horror segment where Krusty sandblasts unlicensed images of his face off the walls at Maggie’s day care and dies horribly as a result. (Ironically, you can now watch that episode on Disney Plus.) After Disney struck down the unlicensed Mickeys, Universal jumped at the chance to replace the murals with Hanna-Barbera characters like Fred Flintstone. This was just ahead of the 1990 opening of Universal Studios Florida, where those Hanna-Barbera characters would serve as the park’s cartoon mascots.

But Universal Studios’ current cartoon mascots are far, far more ubiquitous than Fred. And letting creators put those mascots on walls, signs, and indie products has arguably done the studio far more good than chasing down copyright violators ever would have.

Mickey Mouse, created in 1928, is America’s preeminent cartoon hero — at least on paper, traditionally. But it’s easy to go a day or a week or longer without seeing a picture of Mickey Mouse. When was the last time you went a week without seeing a Minion reference, a social media meme or ad or sign or logo? They’re the dominating cartoon menaces in America by a yellow landslide.

And they’re almost certainly on the walls of a number of day care facilities. Universal Studios — parent company of Illumination, the animation studio that blessed us with Minions — did not put them there. The Minions aren’t public domain. But you wouldn’t know it by the many ways people have taken ownership of them. And Universal’s comparatively hands-off attitude toward Minion litigation has arguably paid off — by making them as recognizable and culturally front-and-center as Mickey, if not more so.

Photo: George Rose/Getty Images

The Minions are part of a proud lineage of well-loved babbling diminutive pop culture critters, from Gremlins to Rabbids to Warner’s Tasmanian Devil, in all his many incarnations. Where Mickey Mouse is generally well-meaning and brave, the Minions and their energetic, childlike brethren are drawn toward anarchy. Friendly as they may be, they brew chaos. They behave unpredictably, uncontrollably. They live to knock over dominos. The world at large loves these little stinkers because they’re walking, singing, giggling ids.

And that’s partly why they’re so deployable in any scenario. A version of Mickey Mouse dressed like the Joker or Austin Powers would feel odd, but that kind of transformational art is fully consistent with the Minions’ malleability, not to mention their personas. The Minions canonically demand a laissez-faire approach to brand management, to allow room for their mayhem. The question beckons: Is that a more appropriate approach to phenomenon-making in the 21st century than Disney’s brand defense?

In 1774, the British courts settled Donaldson v. Beckett, setting modern copyright law in motion. The case — a conclusion to the 1700s’ “War of the Booksellers” between authors, publishers, bookstores, and bootleggers — decided that publishers hold the rights to a work for a maximum of 28 years. Most copyright laws since this decision share many similar traits, though with different, generally longer grace periods. A copyright holder, whether it’s the original creator or the publisher, can commercially sell something exclusively until it eventually enters the public domain. This ensures no estate could retroactively hold dominion over Greek philosophers or William Shakespeare.

While authors, publishers, and distributors still aren’t playing nice 300 years later, the contextual purpose for exercising intellectual property has changed greatly. Victor Hugo lacked the foresight to create entire theme parks and merchandising lines around Les Misérables. Brand owners don’t just want to control a story, they want to control every possible opportunity to leverage it into money and publicity.

Photo: Giorgos Georgiou/NurPhoto/Getty Images

Disney’s playbook has always been to rewrite public domain fairy tales into copyrighted versions, then mold an ecosystem where any other adaptation of the original story comes off as the bootleg. When Disney was able to lobby Washington to extend its copyrights on its trademarked characters in 1998, it was after the studio returned to the zeitgeist with a new generation of uber-popular rewrites of other people’s stories: The Little Mermaid, Beauty and the Beast, and Aladdin.

And Universal has a similar history as a studio. It kicked off its success with a string of adaptations of classic horror stories through the 1930s and 1940s: Dracula, Frankenstein, The Wolf Man, The Invisible Man. Many of these stories are in the public domain, but Universal retains the rights to its own iterations, which have become the canonized versions in the public imagination.

Frankenstein’s monster wasn’t green until Karoly Grosz painted him on publicity material. Universal may rattle a sabre at anyone who tries to make money off a design that hems too too close to theirs. Hammer’s resurrected version of Frankenstein had different scars and shades, but there’s no question that most images of Frankenstein since James Whale’s 1931 movie look back to Universal’s flat-topped giant in some way, as if he were the progenitor in Herman Munster’s family tree. The tolerance for derivative versions isn’t meant to paint Universal as saintly or generous, but it does illustrate how beneficial it can be to let the public run wild with your creations.

The 1990s brought a new level of screeching countercultural feedback, resisting Disney’s family-focused return to dominance. Culture-jammers, Ron English, and Adbusters types were laser-focused on reclaiming Mickey as a kind of surrogate mascot for consumerism and corporate malevolence. Their efforts did nothing to topple the Magic Kingdom, suggesting that even cultural capital has its own forms of soft and hard power. (Think of the band Sparks recording a satirical song about Mickey Mouse on their 1982 album Angst in My Pants, then recording an official, licensed song about Minnie Mouse for Disney a year later.)

Culture-jamming has become a lost art, but only because it grew even bigger — and more sincere. Now, when people share their images of Minions, Shrek, or SpongeBob (curiously, three cartoon characters who all have had attractions at Universal Studios theme parks), it isn’t a criticism of those properties or the corporate structures they belong to but merely a form of self-expression. Nickelodeon even sold its own toy line of fan-canonized SpongeBobs. While Disney is busy suing Etsy pages, you can show someone just how deep your love is with a Minions wedding ring.

Intellectual property has never been stranger than it is today. Disney, having exhausted fairy tales, now acts as a growing portfolio of active pop culture trademarks: Buying up properties like the Marvel Cinematic Universe and the Muppets just gives the company more territory to jealously safeguard. Don’t expect Darth Vader to visit your birthday without a follow-up from Disney’s legal team.

The ownership of superheroes, Disney’s fastest growing frontier, has always been a contested issue, with Disney already on the defensive. The reclusive Steve Ditko did not want to be involved with his characters’ Hollywood goings-on, but his estate is now keenly interested in contesting the ownership of Spider-Man and Dr. Strange. Eclipsing them all is the three-circled silhouette of Mickey Mouse himself, soon up for another round of trademark extension, this time with culture-warrior conservatives eager to deny it.

And as this is all happening, the Minions continue to spread across murals, memes, and the internet at large, still smelling like the tube they were squeezed from. They’ll continue to belong to Universal Studios for many years. But in their case that seems functionally irrelevant. How would it look any different if the Minions were public domain? There is nowhere that the Minions are not.

Between tentpole entertainment and algorithmic feedback loops, the mere popularity of the Minions has taken on a perverse life of its own. Just as Frankenstein gives Universal Studios permanent real estate on a chunk of the public consciousness, the unchecked spread of the Minions has vastly increased awareness of Illumination’s work, paving the way for Despicable Me and its spinoffs to steadily continue their advance in a world where the entire internet seems willing to handle Universal’s marketing efforts for free. It suggests that the money, clout, and nostalgia forged from ubiquity can outweigh — or at least significantly amplify — the dollars reeled in from toy sales alone. Maybe Universal has created a monster it cannot control, or maybe it just doesn’t want to. Either way, it’s mastered the process of profiting from that monster’s ever-expanding adventures.