From the Public Domain to Mickey Mouse by Henry Mantel


“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.” - United States Constitution, Article I, Section 8, Clause 8

The Intellectual Property Clause of United States Constitution gives Congress the power to grant copyrights and patents. Copyright law protects original works of authorship in a tangible medium, including literary, dramatic, musical, artistic, and other intellectual works. Patent law protects new and useful processes, machines, products, designs, and varieties of plants.

The first law regarding intellectual property was the Copyright Act of 1790. The act allowed an author to obtain a copyright for a printed work for 14 years that could be renewed once. Violating a copyright was punishable by a fine of 50 cents per printed page of copyrighted material. Once a copyright expired, the work would enter the public domain, free to be used by all without restriction. By 1909, the term of a copyright had been extended to 28 years, still once-renewable.

In the early 20th century, patent law drove filmmakers to Los Angeles. Thomas Edison held patents on many new technologies that were necessary for making movies and did everything in his power to enforce them. It became impossible to make films without his blessing. On the east coast, at least. In California, a difficult and expensive journey from Edison and federal marshals, filmmakers could use Edison's technology without fear of reprisal. Of course, the perfect weather, diverse scenery, and sympathetic judges were also a plus.

As the movie industry grew, animation became more popular. Animated shorts would play before live-action feature films. One such short was Steamboat Willie, produced by the Walt Disney Company. The short was released in 1928 and it was the first appearance of Mickey Mouse. Mickey Mouse became Disney's most popular character and deserves much of the credit for the company's growth. When Walt Disney died in 1966, Mickey Mouse was still covered by copyright.

Since Mickey Mouse's debut, copyright law has undergone two substantial changes. The biggest was in 1976, when US law was harmonized with the Berne Convention, an international treaty formed in 1886 and signed by most of Europe. Under the new law, a copyright lasted until fifty years after the death of the creator. For works published before 1978, the maximum term was retroactively increased to 75 years, giving works created between 1922 and 1941 an extra nineteen years of protection.

The second change happened in 1998, when, after some heavy lobbying from Disney and other older copyright holders, Congress passed the Copyright Term Extension Act, also known as the Sonny Bono Act or more derisively as the Mickey Mouse Protection Act. The Act increased the length of a copyright to seventy years after the death of the creator while, again, retroactively increasing the maximum term of a copyright granted before 1978 to 95 years. Mickey Mouse was safe for another twenty years.

The CTEA was soon challenged in court. Attorney Larry Lessig argued that constantly and retroactively extending the copyright term was essentially making the copyright unlimited, expressly against the "limited Times" portion of the Intellectual Property Clause. In the case of Edlred v. Ashcroft, the Supreme Court ruled that the CTEA was constitutional because it did not create a perpetual copyright term. As long as there is an express end, copyright can be extended as many times as Congress desires.

As a result of the CTEA, works covered by copyright have not entered the public domain since 1922. To the rest of the world, January 1 is considered Public Domain Day, a day to celebrate all of the new works that enter the public domain. For the last twenty years, America has received nothing.

Now, however, the new year is approaching. Unless Congress passes another extension, works from 1923 will enter the public domain on January 1, 2019. Without an extension, Steamboat Willie will enter the public domain in 2024, Superman in 2033, and Star Wars in 2072.

It remains to be seen if Disney will flex their political muscle to extend copyright again. The rise of the internet has made amateur creators much more aware of the consequences of violating copyright law. At the same time, Disney appears to have realized that amateur creators provide more free marketing for their products than money could ever buy. As a result, hardly anyone is pushing for another copyright extension. Unless Congress acts, Mickey Mouse will finally enter the public domain, free to be used by all.




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