Of Mouse and Man

But fans of "Working" Kirk—and he has a lot of them, as evidenced by the fact that his name was the most often suggested for the new bridge now called Tilikum Crossing—will no doubt notice one thing is missing in the mural. That's the Mickey Mouse hat Reeves was rarely seen without.

"Once I started wearing the Mickey Mouse hat, people won't let me wear anything else," Reeves said in a 2007 documentary. "They get mad. They say, 'Where's the Mickey Mouse hat?'"

But the shape of that hat is also the intellectual property of the Walt Disney Company.

Now, the mural's artist and the Regional Arts & Culture Council are publicly disagreeing about why the hat wasn't included. Artist Gwenn Seemel says she was pressured to include the mouse ears, but was told she would have to face Disney's lawyers alone if it came to that. The RACC disputes this and says it declined to accept any responsibility for a mouse-eared mural on the advice of the city attorney.

"I've been told that I should never have asked [Disney] permission, that I should do the ears anyway, and that it really wouldn't be a big deal," Seemel wrote in a blog post about the situation.

"Legal advice was to not even ask the question," Peggy Kendellen, a RACC art program manager, wrote to Seemel. In the email, Kendellen attached several images of street art featuring Mickey Mouse and wrote, "I doubt Disney took action [against any of them]."

Seemel, a portraitist-turned-muralist who painted Reeves wearing the hat elsewhere, sees this as hypocrisy from the RACC.

"I want it to take intellectual property and copyright seriously," Seemel tells WW. "They shouldn't be advocating it in one instance and asking artists to ignore it other times."

The use of iconic characters in tributes to late, beloved people can get sticky—DC Comics recently took a public relations beating over its refusal to allow a grave marker showing a Toronto boy, who was tortured to death by his grandparents, dressed in a Superman costume.

And Mickey Mouse has been a major player in copyright law. The Disney character was originally scheduled to enter the public domain in 1984, but each time Disney-led lobbying groups pressured Congress to extend the protection. Mickey is currently scheduled to enter the public domain in 2023.

"I've made some satirical paintings involving Disney things before, but I was worried about doing it without that protection," Seemel says.

Seemel, in fact, previously painted a portrait of Reeves, who committed suicide in 2012, wearing his Mickey Mouse hat. But while that portrait of the street performer didn't worry her, a 10-by-30-foot mural did. And it worried the city, too—possibly for good reason.

"Disney would have nothing to gain from going after a local artist," says Kohel Haver, a local lawyer. "But if the city itself was responsible, Disney would have had to get involved."

Seemel urged the RACC to ask Disney for permission to use the hat. Disney declined.

While the RACC claims the issue ended there, Seemel says she was repeatedly reminded that the hat could, or even should, be included in the mural, located at the corner of Northeast Grand Avenue and Lloyd Boulevard. Copyright lawyers said the hat's inclusion would probably fall under "fair use," since the mural is not selling anything and Mickey Mouse ears on a grown man playing a trumpet probably counts as a "transformative work."

But no one wanted to take that chance. Ironically, the RACC policy meant it didn't have to assume any of the risk.

The group's standard procedure is to allow artists paid with public money to make public art to retain copyright of that work—which is why, for example, Raymond Kaskey's Portlandia statue can't be used on mugs or keychains without Kaskey's permission ("So Sue Us," Sept. 10, 2014).

In the mural's case, that practice actually would have protected the city, which would not own rights to the work if it were found to be copyright infringement.

Eloise Damrosch, executive director of the RACC, wrote to Seemel in an email that the council is investigating the possibility of offering "an alternative to keeping copyright of their artwork in public collections," which might have solved the problem.

With Seemel, the muralist, unwilling to paint the Mickey Mouse hat unless protected from liability by the city, the mock-up last September was changed to Reeves wearing a red baseball cap. Seemel decided not to include the cap when she painted the mural in July. Instead, Reeves is hatless in the final work. Both sides say they're happy with that.

"In the end, the mural is close to the original idea," Damrosch says. "Which was always the best idea."

"I wanted to paint Kirk as a human being, not a performer," says Seemel, who counted Reeves as a friend. "There was a certain poetry in that I had to go through all this to do Kirk's memorial. He struggled to have his art taken seriously.” 

WWeek 2015