This article identifies reasons behind why the original Mickey Mouse may not be protected by copyright after all. Menn notes that brand experts value Mickey Mouse today at $3 billion and that he has become the ultimate symbol of intellectual property. Menn also notes that film credits from the 1920’s reveal imprecision in copyright claims. Copyright questions apply to an older Mickey that had longer arms, smaller ears and a pointier nose. This entire notion of Mickey Mouse originally not being protected by copyright begins with Gregory Brown as Menn writes. It was Brown who was a former researcher for Disney who took over the Harvey Productions, home to Casper, who found the imprecision. He learned that Harvey failed to renew copyrights and learned that Disney failed to renew copyright claims on the 1931 short “The Mad Doctor” featuring Mickey Mouse. Brown decided to recreate animation cels but Disney sued and lost the case. However, Brown looked at the original “Steamboat Willie” and found that because three companies were listed without a clear copyright next to any of them, this nullified anyone’s claim. Although receiving some help from friends and people interested in the case, Brown’s appeal was dismissed because he missed a filing deadline. Menn quotes Meiseinger, the former general counsel who said, “everything has to fall into the public domain sometime”.
This article is important to my paper because it take a different look at how people try and put Mickey Mouse back into the public domain rather than arguing against the CTEA. One question that arises out of this article, is why is it so important that Mickey Mouse not be protected? This is a question that I raise in my paper and a question that has several answers to it.
The Copyright Term Extension Act of 1998, which is also known as the Sonny Bono Copyright Term Extension Act as well as the Mickey Mouse Protection Act, extends the copyright terms in the United States by 20 years. Before this act, the law lasted for the life of an author plus fifty years or seventy-five years for corporations. Now, the copyright lasts for the life of an author plus seventy years of ninety-five years for corporations. In 1998, Disney representatives came to Washington looking for help in order to protect Mickey Mouse from going into the public domain in 2003.
This is the act in question for my argument. Disney wanted to protect their creation of Mickey Mouse and prohibit it from entering the public domain, so they called for the CTEA. Congress and President Clinton, who received lavish donations from Disney, signed the act in 1998. Whether or not the act should be upheld is the question I argue in my paper.
These excerpts of the reasons why Congress extended the copyright term shows that these reasons are consistent with previous copyright extension acts that have been granted. One reason is that Congress recognized a number of public policy reasons for enacting such an act. It points out that Senator Orrin Hatch, pointed out that the reasons for passing the act “paralleled those that led Congress to adopt the life-plus-50 year copyright term in 1976”. These reasons include “harmonizing with the European Union and Strengthening the United States Balance of Payments”. If United States copyright owners used works in Europe, it could only be protected if the US term was similar to that of the EU, which is the author’s life plus 70 years. Therefore this was a reason behind the CTEA. Other reasons include: to encourage investment in existing copyrighted works, fair provisions for authors’ descendants and encouragement for the creation of new works.
The last reason given by Congress to pass CTEA holds important weight in my argument. Petitioners argue that the CTEA does not promote new creation, however, it was in the minds of Congress that the CTEA would indeed promote new creation. One creator in particular, Alan Menken testified that providing for one’s family is important during and after one’s life. If copyright would not help to provide for one’s family for an extended period of time, then a creator like Menken would have to stop creating and find employment elsewhere which would not promote creation of new works but actually inhibit it. This reason helps to argue why the CTEA should be supported rather than opposed. With regard to Mickey Mouse, protecting his creation can help Disney create new stories, images, and several ways of using Mickey Mouse.
Edward Samuels argues that the extension of copyright law is not a result of a scheme by corporations to cheat the public but rather a part of a system that the framers of the Constitution had in mind in order to “promote the progress of science and useful arts” by “securing, for limited times, to authors, and inventors, and the exclusive right to their respective writings and discoveries”. Samuels identifies six categories of the public domain, which have all supported the expansion of copyright. Samuels writes that, “In all six areas, the public domain advocates were making arguments against the tide; they lamented the expansion of copyright but could hardly claim that the public domain analysis had in fact already worked its way into dominant copyright theory”. Samuels notes that protectionists of the act try and justify the copyright law based upon natural rights, moral rights and property rights, all of which public domain advocates argue in objection to heavily, however, Samuels argues that the natural rights and property rights are “firmly rooted in copyright history” and that it is recognized as the basis for copyright protection in civil law and outer countries outside of England and the US. Samuels goes on in his article to discuss the Eldred case and argues for the support of the case. He notes that the D.C Circuit Court concluded, “Copyrights are categorically immune from challenges under the First Amendment”. The petitioners of copyright extension argue that the premise of CTEA violated the “limited Times” provision of the Copyright Clause and that Congress can only grant rights in the case that it will promote the creation of new works. They argue that the extension act of 1998 is unconstitutional, but Samuels then asks if that is unconstitutional, are all other proceeding acts unconstitutional as well and therefore have no stopping point. Therefore, Samuels argues, the Supreme Court should not endorse any approach the petitioners present.
This article is important to my topic because it discusses the rationale behind opposing or supporting the Copyright Term Extension Act of 1998, the premise of my paper. Samuels outlines the arguments that advocates of the public domain may make including that of the restriction of creativity and he then argues why the advocates arguments do not hold and why the act should be upheld, an act that protects Mickey Mouse.
Bob Levin’s article “Disney’s War Against the Counterculture” describes the case of Disney vs. O’Neill. Dan O’Neill, a cartoonist created two cartoons along with Ted Richards, Bobby London and Gary Hallgren. They called themselves the Air Pirates, after a group of evildoers who had bedeviled Mickey Mouse in the 1930’s. O’Neill has said that the purpose of creating the cartoons was to “buck corporate thinking. We just didn’t like bullshit”. The first cover was of Mickey Mouse piloting an airplane with two sacks in the plane labeled “Dope”. The second cover was of Mickey Mouse and Minnie Mouse on horseback being confronted by a man with a gun in one hand and a sack of “Dope” in the other hand. Lawyers on behalf of Disney brought suit against the Air Pirates, accusing them of copyright infringement, trademarked infringement, unfair competition, intentional interference with business and trade disparagement through the wrongful use of the characters. The court allowed a restraining order to bar the Air Pirates from any further production and later obtained an injunction. The defense tried to legitimize what they had done and called themselves parodists such as Shakespeare and said they were not trying to pass on their work as a Disney product. They also argued that characters cannot be copyrighted and that they were protected under the 1st Amendment. Judge Wollenberg decided in the favor of Disney citing that Mickey Mouse is a character that constitutes what is being told and that O’Neill admitted to copying Mickey exactly. The 9th Circuit upheld Wollenberg’s decision and the Supreme Court refused to hear the case.
This article and this case is important in understanding the importance of copyright in the case of Mickey Mouse. If Mickey Mouse were not protected under copyright, then O’Neill and the rest of Air Pirates would be able to do whatever they wanted with Mickey Mouse and whatever other characters are not protected by copyright law. If Mickey Mouse were in the public domain, then people would be able to harm the image of Mickey Mouse as O’Neill clearly did and tarnish a reputation that Walt Disney has put tremendous time and resources into upholding. Mickey Mouse and his stories target an innocent audience of children. The defaming images that O’Neill created showed Mickey in an unfavorable light and if the decision did not favor Disney, then Disney’s reputation as well as economic well being could have been damaged forever. My paper distinctly addressed the reasons behind why protecting Mickey Mouse is important rather than allowing him into the public domain.