You are confusing copyright and trademark. Different kinds of intellectual property, different rules. Also as I’ve said already, it would be a stretch to argue that a color by itself was novel enough to qualify for copyright protection.
If you gathered 100 artist who would had never heard of Mickey Mouse before and asked them to draw their own interpretation of a black-and-white picture of what Mickey looked like in 1928 then none of them would be likely to draw him exactly as he looked decades later, but some number of those artists would likely color in his shorts red. Disney could try to argue otherwise but I doubt they would bother since the copyright for that poster is going to expire by next year if it has not already.
Just as an interesting point of reference, this is an image from another Ub Iwerks film from 1930 after he left Disney to start his own studio.
The mouse is not Mickey, nor was his appearance close enough to Mickey’s to draw the ire of Walt’s studio.
This film has already been in the public domain since 1958 because the copyright holder didn’t renew the then-28-year term.
Seriously, as long as you don’t draw a mouse in red shorts in such a way to mislead people into thinking they are viewing a Disney product you are probably fine.
i know the difference between copyright and trademark. the problem is there are four different versions of copyright that cover this time period and depending upon what how they notated copyright, applied it and renewed it.
that poster would have fallen out of copyright a long time ago regardless of the date on it as no one would have renewed copyright in it. nor do they keep track because they didn’t view posters as something someone would have reproduced like we do now!. but that didn’t make Mickey mouse fall into the public domain then because the copyright was protecting the specific character design that Disney had on the poster. the red shorts belong to a later copyright . you could make the argument that if they didn’t have white buttons on them then they aren’t mickey… but I still wouldn’t want to argue against a Disney lawyer regarding their iconic character and mascot
I don’t see why so many people are going to bat for Disney to make a copyright claim that even the company itself hasn’t asserted. Disney lawyers are very aggressive, but the company’s position is “we will go after anyone who uses Mickey in a way that violates our tradmarks” rather than “we will use copyright law to go after anyone who draws Mickey in red shorts or white gloves.”
Even if red shorts were a novel enough idea to qualify for copyright protection—which would be quite a stretch—you conceded yourself that the poster which introduced that idea for the character is itself out of copyright.
