Page 6 - Katten Kattwalk and Kattison Avenue - Winter 2026 - Issue 5

Works Entering the Public Domain Present Commercial Opportunities
for Retailers and Advertisers — But Tread Carefully! (continued)
Notable films that entered the public domain
include All Quiet on the Western Front, which won the
Academy Award for Best Picture; King of Jazz, which
included Bing Crosby’s first feature-film appearance;
popular all-time favorite Animal Crackers, starring
the Marx Brothers (“One morning I shot an elephant
in my pajamas. How he got in my pajamas, I don’t
know.”); Soup to Nuts, which starred later members of
The Three Stooges; Greta Garbo’s first “talkie” film;
Jean Harlow’s film debut; and The Big Trail, which
featured John Wayne’s first leading role.
Although the films themselves may have entered the
public domain, that does not give a retailer or other
advertiser carte blanche to use clips and recognizable
scenes to market their goods and services. That’s
because motion pictures include the photographs,
likenesses and voices of recognizable actors and
other performers. Even though these celebrities
may have passed away, their heirs may own and
control their “post-mortem” rights of publicity, and
the heirs’ consent may be required to incorporate
6 katten.com/intellectualproperty
the deceased performers
in advertisements. It
is worth noting that a
deceased person’s post-
mortem right of publicity
depends upon the laws of
the state in which he or
she resided at the time of
death, and different states
have different statutes (or
common law) governing
the commercial use of a
deceased person’s name,
voice, photograph or
likeness.
Early iterations of numerous
cartoon and animated
characters entered the
public domain as well.
But there are greater risks
involved in making unfettered use of these characters
in new works. For one thing, it is only the version
of the characters as they existed in 1930 that has
entered the public domain; later revisions to and
modernizations of such characters, as well as later
storylines featuring the characters, remain subject to
US copyright protection. In addition, many characters
are also protected by trademark law, so the owners
of characters that have entered the public domain
may have other legal recourse for unlicensed uses by
members of the public.
Among the 1930-vintage characters that have
entered the public domain are: “Betty Boop” from
Fleischer Studios’ Dizzy Dishes; “Rover,” who was
later renamed “Pluto,” in certain Disney works;
“Blondie” and “Dagwood” from the Blondie comic
strips; and several “Mickey Mouse” cartoons and
comic strips. Betty Boop has been featured in
numerous commercials and advertising campaigns,
most famously for Lancôme mascara, while Blondie
and Dagwood have been used to promote A&W
restaurants, Kraft Foods and Kodak, among others.