Posted by Post Authored by: Natalie Elizaroff
With the beginning of a new year, a fresh wave of previously copyrighted works enters the public domain. The cornucopia of works includes books, sound recordings, movies, musical compositions, and more. Among those literary works entering the public domain is Ernest Hemingway’s The Sun Also Rises, Felix Salten’s Bambi, A Life in the Woods, Agatha Christie’s The Murder of Roger Ackroyd, and most notably A.A. Milne’s original Winnie-the Pooh stories. [1]
The friendly, honey-loving bear has created quite a buzz in the media because although Disney’s version of Pooh (wearing a red shirt) is still protected by copyright, the conglomerate no longer has an exclusive right to Milne’s work. This means artists can freely use the work with no restrictions, reimagining the classic through their own artistic lens and profiting from the famous childhood classic. As aptly illustrated by Luke McGarry [2] and separately stated in a Tweet from Tim X. Price, “Red shirt on the bear, artists beware. If nude he be, your Pooh is free,” the use of the lazy bear is contingent on the distinct lack of red shirt.[3] How did we get here though – and how has Disney influenced copyright through the years?
Copyright Law – An Abridged History
U.S. Copyright Law has undergone several revisions since the Congress first implemented the copyright provision of the US Constitution in 1790. This first Act granted American authors, artists, and scientists the right to print, re-print, or publish their work for a period of 14 years and to renew for another fourteen.[4] It was another 41 years before copyright saw any major revisions, but in 1831 Congress extended the term of protection to 28 years with the possibility of a 14-year extension.[5] Major copyright revisions took another break for another couple of decades until 1909 when amendments of the copyright act were completed. The 1909 Act broadened the scope of protected works and extended the term of protection to 28 years with a possible renewal of 28.[6]
How Has Disney Influenced Copyright
U.S. Copyright law today is mostly remembered as a mixture of the 1976 revision of the US Copyright Act, the 1998 Sonny Bono Copyright Term Extension Act, and the 1998 Digital Millennium Copyright Act. [7]
The 1976 Copyright Act was Disney’s first spearhead approach into the world of copyright law. Disney’s involvement came about due to the anticipated expiration of Mickey Mouse. Mickey Mouse first entered the copyright scene in 1928 from Disney’s Steamboat Willie. Under the old 1909 Act, Mickey Mouse would have entered the public domain in 1984. With the immense popularity that Mickey Mouse held, this was not something that Disney wanted. Accordingly, to avoid Mickey falling into the hands of the masses, Disney began seriously lobbying for Congress to make changes to the Copyright Act, which had not seen any development since 1909 – aside from a few court cases. [8] Disney’s lobbying efforts paid off and Congress extended the term of copyright protection to life of the author plus 50 years (works for hire and corporations were protected for 75 years). This meant that the maximum term for already-published works was extended from 56 years to 75 years, meaning this extended Mickey’s copyright protection until 2003.
The 1998 Sonny Bono Copyright Act
Disney’s lobbying efforts resumed with gusto when the 2003 expiration loomed and the global media conglomerate achieved the enactment of the Copyright Term Extension Act of 1998 or the Sonny Bono Copyright Term Extension Act, in honor of the celebrity and congressman who supported copyright protection extensions prior to his death. The 1998 Act is popularly and derisively referred to as the “Mickey Mouse Protection Act”. [9] The revised 1998 Act allowed copyrights to last the author’s lifetime, plus 70 years (for corporations, works are protected for 95 years from their original publication, or 120 years from creation, based on whichever expires first). These changes effectively extended Disney’s copyright claims to Steamboat Willie, and thereby Mickey Mouse, through 2023.
The Importance of the Public Domain (and the threat it faces)
The public domain is important because it enables people to access and build upon imaginative and artistic works without unreasonable obstacles. The public domain encourages creativity and keeps history alive through modern interpretations of classic works. Disney’s involvement has changed copyright law in a way that has prevented authors and creators from building on popular ideas. This in turn has led to the abandonment of many restorative projects and digitalization efforts because of the obstinately long copyright terms. Further, libraries and museum are prevented from publishing historical archives due to indeterminate copyright ownership, film preservation efforts are falling through the cracks as older films disintegrate due to similar issues, and overall, there is a troubling lack of protection for the expansion of the public domain.
Intellectual Property rights are important to individual creators and large companies, alike. The concern is when these rights extend beyond the reasonable scope of protection and begin to destroy what they were originally implemented to protect. The long copyright terms serve the interest of larger companies and famous works by thriving through continued popularity and generating royalty payments. In contrast, the long copyright term is arguably a detriment to most other copyrighted works because their commercial viability died long ago, but they remain off limits in the public sphere. A Congressional Research Service report indicated that only around 2% of copyrights between 55 and 75 years old retain commercial value. After 75 years, that percentage is even lower. Most older works are “orphan works,” where the copyright owner cannot be found at all. [10]
Oh Bother! What should be done?
As more of Disney’s works are set to enter the public domain, the threat is that Disney will relaunch lobbying efforts to extend copyright terms again. Given that these terms are applied universally to all copyrighted works, this threat highlights the potential loss of historic works and the barrier to new creative works. Disney, alongside other corporate giants, have other forms of IP protection that it can rely on, especially when it comes to the iconic symbols that have acquired trademark protections through secondary meaning.
The 1998 Sonny Bono Copyright Extension Act was in many ways a mistake, but now that it is codified, we must take measures to circumvent the fallout and prevent future revisions that extend copyright. Another challenge worth exploring is a process for releasing orphan works into the public domain if the copyright owner could not be determined within a set period of years.
Barack Obama famously said, “The arts are what makes life worth living. You’ve got food, you’ve got shelter, yeah. But the things that make you laugh, make you cry, make you connect – make you love are communicated through the arts. They aren’t extras.” We should strive to advance copyright protection in a way that benefits everyone, but most importantly, benefits the creators, and we should shy away from letting legislature be decided solely in the favor of the wealthy and the corporations.
[1] Michael Hiltzik, ‘Winnie-the-Pooh’ (born 1926) is finally in the public domain, a reminder that our copyright system is absurd, L.A. Times (Jan. 3, 2022), https://www.latimes.com/business/story/2022-01-03/winnie-the-pooh-public-domain.
[2] Luke McGarry, Pooh in the Public Domain, Luke McGarry (2022), https://lukemcgarry.com/product/pooh-in-the-public-domain-print/.
[3] Tim X. Price (@TimXPrice), Twitter (Jan. 2, 2022, 6:19 PM), https://twitter.com/timxprice/status/1477796748265463812?s=20&t=87YOoHc0gWSE2r_HOzi_6Q.
[4] Copyright Timeline: A History of Copyright in the United States, Association of Research Libraries (2022), https://www.arl.org/copyright-timeline/.
[5] Id.
[6] Id.
[7] Digital Millennium Copyright Act, Cornell Law School (2022) https://www.law.cornell.edu/wex/digital_millennium_copyright_act (The 1998 Digital Millennium Copyright Act brought copyright into the modern era and effectively made it illegal to circumvent copy protections designed to prevent pirates from duplicating digital copyrighted works and selling or freely distributing them).
[8] Josh H. Escovedo, Disney’s Influence on United States Copyright Law, The IP Law Blog (Feb. 17, 2016), https://www.theiplawblog.com/2016/02/articles/copyright-law/disneys-influence-on-united-states-copyright-law/.
[8] Meghan Nugent, Mickey Mouse, the Founding Fathers and Copyright Law, Financial Poise (Feb. 12, 2020), https://www.financialpoise.com/copyright-law/.
[9] Id.
[10] Edward Rappaport, Copyright Term Extension: Estimating the Economic Values, CRS Report for Congress (May 11, 1998),https://digital.library.unt.edu/ark:/67531/metacrs727/m1/1/high_res_d/98-144e_1998May11.pdf.
About the Author:
Natalie Elizaroff is a 3L at UIC School of Law, recently renamed from the John Marshall Law School. She is the Candidacy Editor of the Review of Intellectual Property Law, President of the Intellectual Property Law Society, and Treasurer of the Video Game Law Society. Prior to law school, Natalie graduated with a B.S. in Molecular Biology from Loyola University Chicago. Natalie currently works as a Law Clerk with Advitam IP, handling trademark litigation, patents, and other IP-related matters.