Wednesday, January 3, 2024

The semi-emancipation of proto-Mickey

So it finally happened. After countless successful battles involving armies lobbyists, Mickey Mouse is in the public domain... sort of. He still has trademark protection which isn't going away anytime in the foreseeable future so you can't name your amusement park Mickey Mouse-land, nor can you draw him with white gloves and red pants (It is only the 1928 Steamboat Willie version where the copyright has expired), but if you are creating a movie or TV show or comic book, you can introduce the familiar rodent as a character without being sued into oblivion by the Walt Disney company.

This is a complicated story, so some background is helpful.

From Wikipedia:

The Copyright Term Extension Act (CTEA) of 1998 extended copyright terms in the United States by 20 years. Since the Copyright Act of 1976, copyright would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship. The Act extended these terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier. Copyright protection for works published prior to January 1, 1978, was increased by 20 years to a total of 95 years from their publication date.
For twenty years, nothing entered the public domain.

What made the Sonny Bono Act especially egregious was the fact that it came less than a quarter century after the 1976 act which was itself a major copyright extension. For context, the previous statutory extension had been in 1909.

There was some justification for the 1976 law. Media had undergone huge innovations and those sixty-seven years and the law very much needed to be updated with respect to movies, television, etc., but the case for those extensions was far weaker, particularly with work-for-hire. What had changed was that this IP was now worth a tremendous amount of money. The middle fifty years or so of the 20th century had been stunningly fertile in terms of popular culture creating tens, probably hundreds of billions of dollars worth of intellectual property which was about to start sliding into the public domain unless action was taken.

In 1998, the impetus was obviously and almost entirely the desire of a handful of huge corporations to keep from handing back works that, for the most part, they had accumulated, almost always having paid the actual creators a fraction of the value of the original works. 

As for the wider economic impact, here's the invaluable Michael Hiltzik:

The fundamental error in this timeline is the notion that ever-longer protection is a good thing. It’s wrong on several counts. To some extent it’s based on the theory that creators (or their heirs) should be entitled to income from a work well into the distant future in order to incentivize creative artists to create.

But the truth is that the income stream from all but a tiny minority of published works largely evaporates after the first few years, and what does arrive decades in the future has a minuscule present value at the time of creation. The 20-year extension in the 1998 law, as 17 economists (including five Nobel laureates) wrote in a 2002 Supreme Court brief, provided “no significant incentive to create new works” and arguably less for existing works.

In fact, constraining entry into the public domain is a drag on creativity. 

Once a work enters the public domain, Jenkins says, “community theaters can screen the films. Youth orchestras can perform the music publicly, without paying licensing fees. Online repositories such as the Internet Archive, HathiTrust, Google Books, and the New York Public Library can make works fully available online. This helps enable access to cultural materials that might otherwise be lost to history. ... Anyone can rescue them from obscurity and make them available, where we can all discover, enjoy, and breathe new life into them.”

In some cases, extended copyright seems to work against the public interest. Consider the stringent control exercised by the estate of the Rev. Martin Luther King Jr. — mostly his children — over his speeches and writings such as the “I Have a Dream” speech he delivered in Washington, D.C., on Aug. 28, 1963.

On the day it was delivered, the speech was eligible for copyright protection through 2019. Congressional revisions extended the speech’s copyright until 2058, nearly a century after King delivered it to a massive crowd at the Lincoln Memorial and untold more viewers on television. Filmmaker Ava DuVernay had to put rewritten and paraphrased lines into the mouth of the actor portraying King in her film “Selma,” about the 1965 protests in support of the Voting Rights Act.

DuVernay’s options were limited because the King estate had sold the film rights to Steven Spielberg for a still-unproduced project. Even had she acquired the rights, she said, that might have required giving the family a voice in how King was portrayed, constraining her own artistic choices.

The next few years will be interesting. Things should be quiet for a while, but around 2034, assuming they don't try for another extension (and I doubt they'll push it that far), things will start to pop, particularly at Disney and Warner Bros. where such valuable characters as Donald Duck, Bugs, Daffy, Porky, Superman, Batman, Wonder Woman, Captain America, Namor will either be in the public domain. 

 We are about to enter the golden age of trademark enforcement.


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