Copyright forever?
How Disney and other corporate entities have hijacked artistic protection
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
So reads the Constitution of the United States (Article I, Section 8, Clause 8), in granting Congress the power to pass laws establishing copyrights and patents. Note that it doesn’t require Congress to pass such laws — it allows for it.
The original copyright laws in this country predated the adoption of the Constitution, and were passed by state legislatures, granting authors anywhere from 14 to 21 years of the exclusive right to publish their works. After that, anyone could publish a work — much as anyone can publish a new edition of Shakespeare or the King James Bible, and not have to pay royalties. (Sites such as Project Gutenberg have digital copies of all types of works that are in the public domain, everything from Homer to Shakespeare to some of the early Tarzan titles by Edgar Rice Burroughs.)
Today, after a convoluted journey powered in large part by the legal department at Disney (with several assists by the Recording Industry Association of America), that protection stands at a remarkable 90+ years.
Interestingly, while entertainment conglomerates have gotten Congress and international bodies to extend copyright protection to well over a century before those works return to the public domain, available to anyone, patent law has remained pretty steady: Twenty years from the date you file the patent, and then your invention is public domain.
Given that the Constitution makes no differentiation between the two types of creativity, the wide disparity between the two in contemporary law is, to say the least, curious.
Are we really to believe that Samuel Clemens is deserving of and more in need of protection for his works than, say, Thomas Edison? That the next comic book or hit record is more important to the American people than a lifesaving drug?
James Madison, who was deeply involved in the writing of the Constitution, shared his thoughts about copyright and patent in an undated letter written during his post-presidential retirement:
“Monopolies tho’ in certain cases useful ought to be granted with caution, and guarded with strictness against abuse. The Constitution of the U.S. has limited them to two cases, the authors of Books, and of useful inventions, in both which they are considered as a compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withhold from public use. There can be no just objection to a temporary monopoly in these cases: but it ought to be temporary, because under that limitation a sufficient recompense and encouragement may be given.”
So clearly the purpose of copyright was to encourage the artistic and inventive among us to create things that would benefit the whole of society.
Yet that is hardly the current situation. Rather than providing financial motivation to the creative, today’s copyright law is a bulwark against creativity — shielding massive corporations from competing visions of iconic characters. After all, why should Batman be treated differently that Robinhood?
And for the first century of our nation, there was no such great disparity.
Still, even by 1908, the term of a copyright in the United States had been extended to 42 years — double the patent protection granted an inventor.
During debate the next year about revisiting copyright law to include photography, it was noted that in European nations the standard had become the life of the author plus 50 years, to allow for the care of an author’s wife and children. The 1909 U.S. law extended the total term to 56 years.
However, the United States was still excluded from signing the Berne Convention providing international protection, because the global standard had become life of the author plus 50 years. In 1976, Congress adopted that standard — and then some. By 1998, the international standard had become life of the author plus 70 years, and the United States was compelled to update its own laws.
But it was Disney that led the lobbying for the 1976 copyright extension — as the original copyright on Mickey Mouse, the company’s iconic cartoon character, was due to expire in 1984. The 1976 law extended that copyright to 2003.
The 1998 law — again championed by Disney, with a host of other entertainment conglomerates acting as allies (the record industry in particular) — extended Mickey’s protection through the 2023 calendar year.
As this is written, the character of Mickey Mouse will enter the public domain on Jan. 1, 2024 — at which point, anyone would be free to create new Mickey Mouse cartoons, comic books, children’s books, stuffed animals, etc. We could see gay Mickey, Orthodox Jewish Mickey, hip-hop Mickey, evangelical Christian Mickey — and there wouldn’t be a thing Disney could do about it.
While estimates vary, it is clear that the Mickey Mouse character generates billions of dollars in profits for Disney each year. And while Disney still has a trademark on the Mickey Mouse image (and trademarks, as symbols of a corporation, can be renewed indefinitely), it obviously cannot trademark every possible iteration of Mickey — and trademark protections are very specific.
Further, early films featuring Mickey Mouse, such as his 1928 debut, “Steamboat Willie,” should enter the public domain in coming years, meaning anyone with a film print would be allowed to make a digital copy and sell their own DVDs or BluRays, or stream it, without having to pay royalties to Disney.
Given the tight margins in Congress, it seems unlikely Disney could get another copyright extension passed this year. European and Asian regulators are also none too happy with U.S.-based corporations right now, so it is possible that Mickey Mouse may actually finally get to live where he belongs: In the public domain.
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