Disney Doesn't Need To Campaign For Copyright Extension
toa267, modified by AnonMoos, Public domain, via Wikimedia Commons
For years, Disney, and all major media holders, have pushed to extend copyright so that their Intellectual Property can remain outside the public domain — i.e., materials not protected by IP laws. Their political meddling has been detrimental to our property laws. As I wrote in The MCU Was Never A Bold, New Experiment in Cinema:
“…a factor in this hectic [media] landscape is that, over the years, Disney (as well as other content “producers”) have made Intellectual Property increasingly more hostile to upstarts. As their mascot, Mickey Mouse’s initial short, Steamboat Willy, approached the public domain in 1983, Congress amended the law in ’76, so it remained in Disney’s hands. They did so again in 1998 with the Sonny Bono Copyright Term Extension Act to the point that copyrights now extend to the author’s life plus 70 years”
We are approaching this period once again, as that crucial bit of Disney IP enters the public domain next year. The question going through many people's minds is, "if the Mickey Mouse company will once again push for an extension?" You can find such speculation in article after article after article.
While this fate is always a possibility, the sad truth is that lobbying or not, the company has already laid out such a legally regressive policy regime that, barring any significant changes, it does not need to lobby Congress at all to keep its IP indefinitely.
A brief history of Disney's IP
It cannot be understated how Disney's brand has been turning IP, much of it either in the public domain or coming from elsewhere, and placing it inside walled gardens. Its cornerstone brand is Disney Princesses, something that emerged in the 2000s to retrospectively lump together princess stories from the 30s, 50s, 90s, and beyond into one cohesive "label," and nearly all of them were based on works in the public imagination.
The first major princess title came out in 1937, during the studio's Golden Age, with Snow White, which was based on an oral German folktale made popular by the Brothers Grimm. Every prominent Disney princess, from the Little Mermaid, drawing on Hans Christian Andersen's book of the same name to Aladdin, being loosely modeled after One Thousand and One Nights, has relied on using fairytales, folklore, and works of fiction in the public domain.
How does one build a brand and merchandise something that everyone should be able to use?
The answer is that the Disney company has been quite litigious over its depictions of these again public stories. They infamously have done everything from making a Florida day care center remove Disney characters off their walls to almost trademarking Dia de los Muertos for merchandising, if not for a massive outcry (similar attempts made for Hakuna Matata). When it comes to merchandising, they seem willing to advance whatever the law and consumer comfort will allow.
And more than being protective in court, this effort extends to the law itself. The company infamously has campaigned for the extension of copyright law to the point that Steamboat Willie, the original Mickey Mouse short first published in 1928, is set to enter the public domain on January 1, 2024. Again, the mouse was initially set to become public in 1983, only for Congress to conveniently extend it via the 1976 Copyright Act.
The same thing happened with the 1998 Sonny-Bono Copyright Term Extension Act. According to a paper by Kaitlyn Rose Bernaski titled Saving Mickey Mouse: The Upcoming Fight FOR Copyright Term Extension, the lobbying by Disney for the 1998 campaign was particularly significant. They set up a Political Action Committee (PAC) that heavily donated to the bill's sponsors in both the Senate and House, totaling nearly $800,000 (note this was before the nearly unlimited money of Super PACs as a result of Citizens United). The then-chairman of Disney, Michael Eisner, even personally met with Senate Majority Leader Trent Lott, who eventually became a cosponsor of the law.
Disney's lobbying, alongside other Hollywood entertainment companies, paid off. Now we are at a point where all works now enter the public domain long after anyone who had anything to do with them is alive. This is the standard all over the world (see the Berne Convention). In fact, many European countries had already extended their copyright laws before the 1998 law was passed.
People sometimes erroneously argue that this legislation was all done to benefit artists and their descendants and keep us in line with "European Standards," but these justifications are red herrings. We hardly see corporations rushing to push Congress to meet other European standards, such as parental leave, drug pricing, or single-payer health care. We similarly do not have any evidence that this legislation significantly benefits descendants. As copyright scholar Dennis Karjala told Pricenomics in 2016:
“All of these arguments are either demonstrably false or, at best, without foundation in empirical data. The extensions are corporate welfare, plain and simple — and they have caused a lot of harm to the general public.”
It's debatable whether these laws benefit artists in the aggregate. Most of the wealth from these brands is not going to the descendants of artists either but to megacorporations like Disney, who have been more than willing to distort our laws for profit. The question people naturally ask is if this will happen again, and unfortunately, the sad answer is that it doesn't matter.
The Courts are on Disney's Side
At this point, there has not been the same type of movement by Disney to push for an extension. This is in part because of the Internet. The American public is much more interested in copyright law, as the rights of images, songs, and videos affect our day-to-day lives much more than they have in the past. While there is no guarantee that concern would translate into stopping such a law, it does mean that it would be harder to conceal.
For example, the debate over Net Neutrality 8 years ago was heated (as well as the one in 2020), with many influencers making videos and pushing followers to call legislators in protest. Why Net Neutrality Matters (And What You Can Do To Help) pleaded a CollegeHumor video. No doubt something similar would happen if such a legislative campaign to push copyright extension were tried now. Again, it's not that such actions stop lobbying efforts, but in the age of content, someone somewhere is usually talking about it. And so, unless we see some major turn in the next couple of months, the Mickey Mouse Company will not fight these older properties falling into the public domain.
In many ways, the deadline for such a push would have been in 2018, when copyrighted works made after 2022 started to enter the public domain, or even in 2022, when Winnie the Pooh joined, not in 2024. Yet a push for such an extension during this period didn't happen. One could argue that Disney does not need to do so. After all, Disney has Star Wars, the MCU, the Simpsons, and more. What's one animated short compared to everything else it has acquired?
Yet that ignores that a corporation would never willingly let go of money. The main reason they didn't push for such legislation is that no matter what happens, they will probably be able to collect checks on Mickey Mouse's visage for decades to come. And that's because of the other legal protection in this equation — trademark law.
Even if Disney does not snap its white gloves and push Congress for another extension, how trademark law is set up means that only the Steamboat Willie short will enter the public domain, not Mickey Mouse's likeness. Copyright only prevents you from copying an original work. A trademark protects the work and ideas of a business's brand. As Christopher Schiller notes in the article LEGALLY SPEAKING, IT DEPENDS on Trademarks Defined: "the mark is separate from the thing being marked. If the thing you want to protect is the mark itself, then you have to appeal to other areas of law (e.g., copyright.)."
And so, theoretically, if you wanted to protect a work, you get a copyright. If you want to protect your company's association with a particular word, idea, or symbol, not the work itself, because it's part of your brand, then trademark law is your friend. Disney does not care about Steamboat Willie as much as it cares about protecting its association with the character Mickey Mouse. And so, it employs trademarks, and unlike copyright law, which is limited to a particular time frame, they can be renewed indefinitely.
In terms of content, trademarks can often apply to particular iterations of a character. For example, this is why you can't retell a Winnie the Pooh story where he wears his red shirt. The book, while in the public domain, didn't have that depiction of the character. It was a Disney invention, so the company has trademarked that specific representation of the character and is quite litigious when someone "infringes" on it.
Furthermore, current legal precedent has concluded that some works develop a "second meaning" where they become automatically associated with a particular brand or company. Since Mickey Mouse is so deeply associated with the company Disney, even if it entered the public domain or was deemed to have an otherwise weak claim (see descriptive marks), they could still most likely retain trademark status. Although we will be able to copy the short Steamboat Willy in 2024, one will not be able to use the Mickey Mouse imagery legally on, say, merchandising and not expect Disney to challenge them in court.
Disney has over 20 trademarks for Mickey Mouse in various Mediums, which, again, last indefinitely as long as they are renewed, and hundreds for all other properties. This applies to every Disney brand: Star Wars, The Simpsons, and Marvel. The way things are right now, we will all be dead before they enter the public domain, and even then, their trademarks will give them effective commercial ownership in perpetuity.
Conclusion
At this point in time, Disney doesn't need to push for a new law. It must only stop the current regime from being overturned in Congress and the courts. Look at our current leaders, and ask yourself if Disney should be worried.
The situation around copyright law is bleak. If we want to change things, we must realize where we are. We exist in a world where the bad guys have already won. We are not in the quiet before the storm, waiting for the enemy to finish us. The evil armies have already broken through the gates, killed the king, and taken over.
Sure, in an ideal world, we would strengthen fair use or void the Sonny-Bono Copyright Act altogether, but that requires political power we do not currently have. We need the tactics of an insurgency: to invalidate the effects of copyright and trademark law by operating under the assumption that the law is not on our side.
Unfortunately, the way most ToS agreements work makes it very difficult for me to suggest concrete alternatives. Instead, I ask you to watch the following Disney movies (consider it my community service for being such a bad girl).
Pirates of the Caribbean: The Curse of the Black Pearl
WALL-E
High School Musical 3: Senior Year
Beauty and the Beast
Bedtime Stories