The Truth About Disney and Copyright
Populist Tough Talk and Posturing on Disney Copyrights Is Ignoring Reality
Quite a culture war kerfluffle has occurred over Disney’s Parental Rights in Education Law (mislabeled as “Don’t Say Gay,” by its opponents and the mainstream media.) The bill forbids classroom discussion of sexual orientation and gender identity in the K-3 classroom. The Walt Disney Company became involved late in the process after several progressive employees pushed back. The Company’s CEO Bob Chapek tried to get Florida Governor Ron DeSantis (R-FL) to veto the bill and has pledged a campaign against it.
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This has prompted DeSantis to threaten Disney’s special privileges in the state, including the more than five decades old agreement giving Disney self-governing status around the areas its Theme Park is located. Other commentators and political leaders have threatened the company’s Copyright over Mickey Mouse including Congressman Jim Jordan (R-Oh.), the likely next Chairman of the House Judiciary Committee.
Cards on the Table
There’s a lot I could say about this issue, but because I don’t want to have this newsletter go on forever, let me offer a few points:
I’m a traditionalist and am sympathetic towards the stated goals of the Florida legislation. I support the general idea of the legislation, but I also understand that the devil may well be in the details as conservative lawyers like David French have argued.
I’m a minor shareholder in the Disney Corporation and disagree strongly with the actions taken by Disney on this legislation, which has nothing to do with the core mission of the Disney Corporation. I’m also bothered the fact that Mr. Chopek is launching a political campaign with company funds when shareholders even paid dividends in two years.
As a parent, a fan of many Disney productions, and as a stockholder, I was not a fan of what was said on the leaked Zoom call. I think the sort of agenda-pushing represented is really problematic.
Conservatives should oppose crony capitalism, plain and simple. Government shouldn’t give special favors to any business regardless of its politics.
No conservative should be in the business of threatening private business. It’s a misuse of a government authority. It’s akin to progressive governments that threaten Chick-Fil-A franchises. The difference is that while Chick-Fil-A is merely seeking to open sandwich shops, and local municipalities were trying to protect people who’d be triggered by the existence of a sandwich franchise, Disney wants to maintain a lot of special privileges in law when it comes to their self-governing status. However, the idea of political leaders saying, “Your ability to do business and the privileges you enjoy depend on whether you’ll go along with our politics.” is entirely against the idea of free market capitalism and the more it’s carried out by both sides, the more we’re going to see corruption eroding the free market.
I could write at-length on a lot of these topics, but I want to turn to one specific threat that’s been made. It’s the idea of the right coming after Disney’s copyright protections. This issue I’ve studied a lot and politicians and media have gotten wrong. So let’s clear up some confusion.
Copyright Protections and Extensions are Not a Disney Special Privilege
There’s no special category of copyright for Disney. Even the 1998 Copyright extension which extended the Copyright on Mickey Mouse was not exclusively for Disney’s benefit.
Under the law, Copyrights prior to 1978, enjoyed a 28 year Copyright, renewable for another 28 years. Congress passed the Copyright Act of 1976 which created a new term for Copyrights of the Life of the Author + 70 years and extended Copyrights an additional 19 years.
Works prior to 1978, would therefore enjoy 75 years of Copyright protection. Without the Copyright Act of 1976, the first Mickey Mouse short Steamboat Willie would have entered the public domain in 1985. However, that was put off until 2004.
In 1998, 60s and 70s entertainment icon turned Congressman Sonny Bono died in a skiing accident. Bono had been an advocate of extending copyrights, and those who supported the caused used his death to rally support for the Sonny Bono Copyright Term Extension Act which extended Copyright an additional twenty years and this served to extend the copyright of the first Mickey Mouse short until 2024.
It’s important to note that while Disney and Mickey Mouse are cited as the sole beneficiaries of the act, that’s not even close to being true. The major movie studios, the estates of dead artists, the Motion Picture Association of America, and the Recording Industry Association of America all wanted this and all have profited by it.
This was big money for a lot of people. It’s only been recently that A.A. Milne’s first Winnie the Pooh a book nd The Great Gatsby by F. Scott Fitzgerald entered the public domain. The same can be said of George Gershwin’s Rhapsody in Blue and even Happy Birthday.
Due to the Sonny Bono Act, numerous properties are still under copyright that would have gone into the public domain. The classic film The Wizard of Oz would have entered the public domain in 2015. Dashiell Hammett’s classic novel The Maltese Falcon would have gone in to the public domain in 2007. Superman would have become public domain in 2014 and Batman would have followed in 2015. Starting in 2018, the song “White Christmas” would have been in the public domain. The Sonny Bono Act was a multi-billion dollar boon to a lot of people who had nothing to do with the Walt Disney Company, not a Disney-specific act. That’s not to say Disney hasn’t benefitted and didn’t lobby for it, but passage was a team effort.
2. Nobody Thinks Another Extension is Coming
Republicans have threated to punish Disney by refusing it a copyright extension=,
Rep. Jim Jordan (R-OH), the ranking Republican on the House Judiciary Committee who will likely become Chairman in the next Congress said, “It’s hard to believe that anyone would have considered extending the already lengthy term, but there’s no way they will get the ear of any Republicans after their radical political activism. America’s strong copyright protections helped make America great … But Congress should not add to Disney’s 90+ years of federal copyright protection to incentivize its new far-left agenda.”
Now of course, Copyright protection has never been for Disney alone and they’ve never set out to extend ninty years of Copyright protection at one time, it’s been nineteen years here and twenty years there.
However, that’s not the big problem with Jordan’s statement. It’s that there’s no indication that anyone in the entertainment industry plans to seek another extension. This was an issue I was quite concerned about this issue back in 2018. If Congress didn’t act on whatever the entertainment industry demanded, the public domain would at last start to grow again. I spent hours trying to find news of the Entertainment Industry’s latest attempt to extend Copryight and found there weren’t any. Arc Technica talked to industry lobbyists at the time and found no appetite for an extension fight:
"We are not aware of any such efforts, and it's not something we are pursuing," an RIAA spokesman told us when we asked about legislation to retroactively extend copyright terms.
"While copyright term has been a longstanding topic of conversation in policy circles, we are not aware of any legislative proposals to address the issue," the MPAA told us.
The reason there was no extension had little to do with a change of heart in the entertainment industry and more with a sea change among the opposition. When the Sonny Bono Act passed in 1998, the public was disengaged and as a result, it was passed with overwhelming majorities. Copyright were a boring topic to nearly everyone. Not so now:
The rise of the Internet has totally changed the political landscape on copyright issues. The Electronic Frontier Foundation is much larger than it was in 1998. Other groups, including Public Knowledge, didn't even exist 20 years ago. Internet companies—especially Google—have become powerful opponents of expanding copyright protections.
Most importantly, there's now a broad grassroots engagement on copyright issues—something that became evident with the massive online protests against the infamous Stop Online Piracy Act in 2012…
And that means that advocates of a new copyright term extension bill wouldn't be able to steamroll opponents the way they did 20 years ago. Any term extension proposal would face a well-organized and well-funded opposition with significant grassroots support.
"After the SOPA fight, Hollywood likely knows that the public would fight back," wrote Daniel Nazer, an attorney at the Electronic Frontier Foundation, in an email to Ars. "I suspect that Big Content knows it would lose the battle and is smart enough not to fight."
“Big Content” decided to take a pass in 2018 and there’s no indication that Disney or anyone else expects Copyright extension in 2023. The battle against expanded copyright protections the Populist Right is threatening has already been won by libertarian and classically liberal organizations dedicated to freedom online. However, this makes the pledge to fight a Disney copyright extensions work great for the populist right wing grift machine.
It’s a simple plan:
a. Declare opposition to legislation that won’t be introduced.
b. Do Nothing
c. Tout your achievements and declare victory for standing up to Disney and not passing a bill that’s not even likely to be introduced.
Like much you see from the big right wing populists, it’s a scam for the gullible.
3. The Impact of Copyright Expiration is exaggerated.
Writing over at Townhall, Kurt Schilchter said, “It is now going to be open season on Mickey in 2024 unless another extension gets granted.”
This isn’t at all true. What will happen in 2024 is that Steamboat Willie and another Mickey Mouse short, The Gallopin' Gaucho will enter the public domain and anyone could watch them or include them on a public domain cartoon website or DVD. In theory, people would be able to make their own Mickey Mouse material, but only Mickey as he was portrayed in those two cartoons. If you wanted to portray Mickey’s dog, you’d have to wait until 2026 and if you wanted to call the dog Pluto, you’d have to wait until 2027 because he wasn’t called that until 1931. Essentially, later innovations would remain under copyright for many years. So Mickey in his Sorcerer’s Apprentice garb would be copyrighted until 2036 when the copyright to Fantasia will expire.
At the same time, it should be noted that many rights owners try to use trademark law to get around public domain which is why it can be such a pain to make new Sherlock Holmes productions in cooperation with the estate of Dame Jean Conan Doyle, the daughter of the author despite the vast majority of Holmes stories being in the public domain for decades in the U.S. and anywhere in the World where copyright expirations is tied to the death of the author. Disney could use similar tricks to thwart the creation of non-Disney Mickey Mouse works even when its copyright of Mickey Mouse’s first two shorts expire.
Back to the Constitution
The Constitution gives Congress to set the power of Copyright for this purpose: “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.”
This was another problem with Congressman Jordan’s critique of Disney and Copyright. The purpose of Copyright “incentivize” any agenda. I’ve written books, Congressman Jordan has written a book, and many people on the left have written books. All enjoy equal copyright protection. Copyrights aren’t favors doled out to people based on ideology or even character.
If there were no copyright protections and people couldn’t earn money for their work, it would hurt the arts and sciences. Few people could afford the time and energy to write something if someone could immediately use it without compensation. Copyright protection allows you exclusive control over your work and the ability to profit from it for a limited time. However, part of living in a country that offers those protections is that eventually your work reverts to the public and becomes part of the common culture. What’s happened in this country is that large corporate conglomerates and estates have benefitted from the protection of intellectual properties but have concluded that unlike legends such as William Shakespeare, Mark Twain, or Jane Austen, their works cannot become part of the public domain. And even when copyrights expire, these entities continue to find ways to profit on decades old works and restrict the use of characters that ought to be in the public domain.
Regardless of whether a corporation is “woke” or not, it shouldnt’ possess eternal Copyrights. It doesn’t further the Arts or Scientists, it just allows undue corporate profits.
I would propose repealing the Sonny Bono Act, which would have the effect of bringing works created prior to 1948 into the Public Domain next year and closing loopholes that allow “rights holders” to restrict the use of characters that have entered the public domain. While the International Copyright regime limits what can be done about copyrights on more recent works, I would favor reducing copyright terms to the life of the author plus fifty years instead of the current life plus seventy. This would hurt Disney, Warner Brothers, the RIAA, and even the estate of William F. Buckley, but that wouldn’t be the point. The point would be to move copyright laws back towards the Constitution and to ensure a healthy public domain.
If we do that, liberals don’t win, conservatives don’t win, but America wins, and so does the idea of a healthy Copyright system and public domain.
The Real Culture War Battles
While the likes of Jim Jordan shadow box an imaginary battle with Disney over copyright extension, real issues that effect cultural conservatives go unaddressed.
Christian First Amendment Attorney Casey Mattox had a good Twitter thread reminding us of battles that are more important and far more neglected by the new right:
This is a great thread and it captures the nature of the populist right and how they are playing Christian Conservatives. They are “winning” big victories that are mostly symbolic. Bills written by populists are often vaguely written and destined to be thrown out in court but at the same time don’t do the heavy lifting on bills that will stand and make a difference.
Big Corporations would come a lot harder against a state if it a passed a well-crafted religious liberty bill than the more insubstantial and fleeting legislation that gets passed, but comprehensive religious liberty legislation would also lower the temperature in public debates and make Christians feel less afraid and therefore less susceptible to the efforts of the populist right to scare Christians out of their mind and money.
Using government to punish private organizations sets a horrible precedent and will be counterproductive. On the other hand, passing fair laws that allow everyone a chance to compete and correcting inequities in the Copyright system, while safeguarding the right to religious liberty will lead to a more just society and this is the approach serious traditionalists should follow.