Copyright Duration and the Mickey Mouse Curve

by on August 6, 2009 · 28 comments

Herewith another recent addition to my draft book, Intellectual Privilege: A Libertarian View of Copyright, (inspired, in part, by Berin Szoka’s recent claim, “I just don’t know what the right balance [for copyright] is! I’m glad there are others patient enough to try to figure it out. This is why we have economists and… yes, even lawyers!”):

As an illustration of the public choice pressures that drive copyright policy, consider the fate of the copyright in Steamboat Willie, a 1928 cartoon that the Walt Disney Company cites as establishing its copyright claim in Mickey Mouse. Scholars have made a surprisingly strong case that, because the requisite formalities of the 1909 Copyright Act were not satisfied, Steamboat Willie has fallen into the public domain. The Walt Disney Company has responded to such claims by threatening to bring suit for “slander of title,” demonstrating how seriously it takes its copyright in Steamboat Willie. Let us take that copyright seriously, too, then, so that we might better understand the public choice effects of the Walt Disney Company’s interests.

Copyright Duration and the Mickey Mouse Curve

The above figure illustrates how the duration of the copyright that the company claims in Steamboat Willie—marked by the solid grey line—has twice approached expiration—a limit marked by the dashed grey line. In both instances, federal lawmakers amended the Copyright Act to extend copyright’s duration, both for copyrighted works generally and works, such as Steamboat Willie, that predated the amendments. The line marking the copyright term in Steamboat Willie jogs upward both on the effective date of the 1976 Act (January 1, 1978) and again on the effective date of the Sonny Bono Copyright Term Extension Act (October 27, 1998). (Steamboat Willie did not receive the maximum possible copyright duration under either extension due to complications arising from the work’s status as a work in its second term under the 1909 Copyright Act.) No one can, of course, say with certainty whether or to what degree lobbying by the Walt Disney Company drove those copyright term extensions, which fortuitously or not saved the (supposed) copyright in Steamboat Willie from falling into the public domain. It does not take a great deal of skepticism, however, to predict that federal lawmakers will extend copyrights again before 2023, at which time Steamboat Willie will once more risk sailing beyond the limits of copyright’s duration.

Given the rough-and-tumble of real world lawmaking, does the rhetoric of “delicate balancing” merit any place in copyright jurisprudence? The Copyright Act does reflect compromises struck between the various parties that lobby congress and the administration for changes to federal law. A truce among special interests does not and cannot delicately balance all the interests affected by copyright law, however. Not even poetry can license the metaphor, which aggravates copyright’s public choice affliction by endowing the legislative process with more legitimacy than it deserves. To claim that copyright policy strikes a “delicate balance” commits not only legal fiction; it aids and abets a statutory tragedy.

[Crossposted at Agoraphilia, TechLiberation Front.]

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About Tom W. Bell

Tom W. Bell teaches as a professor at Chapman University School of Law, in Orange County, California. He specializes in intellectual property and high-tech law, topics on which he has written a variety of articles. After earning his J.D. from the University of Chicago School of Law, Prof. Bell practiced law in Silicon Valley and Washington, D.C., served as Director of Telecommunications and Technology Studies at the Cato Institute, and joined the Chapman faculty in 1998. For fun, he surfs, plays guitar, and goofs around with his kids.

Read more articles by Tom W. Bell.

  • http://angrydictator.com PJ Doland

    What does this really mean, given the fact that Mickey Mouse is also registered as a trademark?

    Aren't we really just talking about the copyright status of a few specific animated shorts of limited commercial value (“Mickey Mouse in Plane Crazy,” “The Gallopin' Gaucho,” and “Steamboat Willie”) and not the iconic characters themselves?

  • http://www.tomwbell.com/ Tom W. Bell

    If Disney had no copyright in Steamboat Willie, then others could freely reproduce that version of Mickey Mouse, and derivative versions thereof. You might think that those copiers would have to stop short of causing consumer confusion, but in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), ruled out using unfair competition law to establish exclusive rights in uncopyrighted materials. (For my article on that far-reaching case, see “Misunderestimating Dastar: How the Supreme Court Unwittingly Revolutionized Copyright Preemption,” 65 Maryland L. Rev. 101 (2005), a draft of which you can find at <http://tomwbell.com/writings/Dastar_Final.pdf>.)

    Long story short: You could not only reproduce and distribute Steamboat Willie freely, you could make a movie of Mickey flying a blimp, snorting coke, break dancing, expounding on copyright . . . . He'd become just another malleable public domain icon, like Santa Clause or Peter Rabbit.

  • http://srynas.blogspot.com/ Steve R.

    Berin asks a very legitimate question on the balance of copyright. Establishing that balance is challenging because we have a shifting legal landscape that is consistently evolving. As your chart above (and other posts that you have written) demonstrate, the scope and extent of copyright has been expanding over the years. So how do you really establish a “balance” if you first negotiate a (hypothetical) 10 year term, but in year 5 the other party now claims this is “unreasonable” and demands 20 years? You agree to the new (hypothetical) 20 year term, but in year 15 the other party once again asserts that the agreement is unreasonable and now demands that it be extended to 30 years. In a sense agreeing to these extensions this is akin to the practice of appeasement.

    Unfortunately, those who promote “strong”copyright seem to have successfully captured the moral high ground in the name of protecting “their” so-called property. The fact that the “strong” copyright advocates are “stealing” from the public does not yet seem to have truly surfaced as a concern. So in terms of Berin's balance question, how can a valid balance be established if one party is perceived as the victim when they are actually the perpetrator?

    Additionally, the concept of copyright seems to have morphed into another “entitlement” (welfare) program. As many people have noted, the purpose of copyright is to provide the creator with a limited monopoly before the work is passed into the public domain. It was never meant to operate as an eternal toll-booth for the benefit of the author. Once, again, I have to acknowledge that those who advocate a “strong” copyright seem to have snatched the moral high ground with the concept that the starving artists and their heirs should be continuously compensated for a creation no matter how many years may have passed. Again, how can one achieve a rationale balance to copyright if the expected response is that this would put a starving widow with X kids into the street?

    Finally, I think respect for the law itself is at stake in this discussion. When society perceives a law to be onerous people will ignore the law and may even take part in civil disobedience. One would hope that those who advocate a “strong” copyright would perceive this trend and accept the logic that real balanced solution must be reached for the sake of society and our legal system. I, for one, would like to see rationality restored to both copyright law and patent law.

  • http://www.openmarket.org/author/alex-harris/ AlexHarris

    Uh oh. We're breaking the IP truce within cyber-libertarianism! I'm with you, Tom. Call me if war breaks out.

  • http://www.tomwbell.com/ Tom W. Bell

    Steve R.: Well put! I'd only add that friends of free markets should especially doubt that central planners can set the parameters of copyright to maximize social welfare. Heck, I wouldn't even trust, say, the DOT to set the price of gasoline right!

    AlexHarris: Uh, oh. I think I missed that “truce” memo. Did I say something wrong?

  • http://angrydictator.com PJ Doland

    Wouldn't any derivative works necessarily violate Disney's trademark (NOT COPYRIGHT) on the Mickey Mouse character, which they also hold, and have defended appropriately, for the last 81 years?

  • http://www.tomwbell.com/ Tom W. Bell

    Not necessarily, PJ. Again, I refer you to the Dastar case and its progeny. Basically, the Dastar Court interpreted federal law to forbid using unfair competition claims so as to create a sort of mutant copyright in works that have fallen into the public domain. Lower courts have read that holding very broadly (as I discuss in my paper), as the policy behind Dastar suggests they should, extending a similar bar to claims made under state law. The same line of argument would likewise arguably prohibit Disney from using the Lanham Act (the federal statute at issue in Dastar) to limit the use of a public domain Mickey Mouse.

  • http://www.facebook.com/levi.ramsey Levi Ramsey

    The best market solution is probably to make copyright terms variable and price them accordingly.

    For example, initially creators could purchase up to n years of protection at $x per year.

    Indefinite renewals for up to n years could follow suit, but the price per year would increase with successive renewals, perhaps exponentially.

    By making the price of copyright protection increase in line with the term of protection, only those works where the protection is worth more will be protected for longer periods of time. Once a work's future value is underestimated by the copyright-holder to be below the price of renewal, then it will fall into the public domain.

  • http://srynas.blogspot.com/ Steve R.

    Intriguing concept. But one of the issues with copyright is the ambiguity and changing nature of its scope. For example, if I buy an MP3 CD, I have a right to copy it to my computer and/or make my own CD mix of legally bought songs. However, the copyright maximalists have segmented this copyright concept in licensing for each type of use. Additionally, DVD's are sold with onerous region codes,which limit their utility. If this increasingly restrictive trend is allowed to continue, I could see it ending up with the user paying some sort of micro-fee each time the content they bought is played. Clearly, in the end, this is absurd situation that is logically flawed. So to get to Berin's balance question, this unacceptable aggrandizement of property rights by the content industry needs to be recognized and stopped.

  • http://techliberation.com/author/berinszoka/ Berin Szoka

    Well said, Tom.

    I can understand the arguments for trying to enforce copyright law, and the arguments that it plays an important function in incentivizing creative work. But those are both very separate arguments from the critical question of copyright's term.

    I think the Framers of the Constitution were pretty smart guys, and the first Congress was on to something with the Copyright Act of 1790. A 14 year term + a 14 year renewal (if the copyright holder was still alive) seems like a decent balance to me. What would be so wrong with that kind of term?

    I had long assumed that it was the Disneys of the world that drove extension of copyright's term as in your example, Tom. But I've since gathered that in fact there was another force at work at least as powerful: pressure from the Europeans to make the term essentially life of the author plus two subsequent generations (70 years), and that this reflects a “human dignity” rationale for copyright: the idea that copyright is justified not by a utilitarian benefit, but by the moral rights of the author, and the concept (which Mark Helperin raises in his new book Digital Barbarism) that the author should stand in “equal stature” with other economic actors who create an asset like a business from which their children can benefit. Is this incorrect?

    Of course, an economist might well point out that whether one's heirs will benefit doesn't really depend on how long the asset continues to produce a revenue stream, since at least in liquid markets where the values of works are assessed with reasonable accuracy during the initial term of copyright, an author could simply sell the rights to their work for an amount roughly equivalent to the asset's net present value (NPV). Part of the argument in Eldred for striking down extensions-unto-permanence was that, because of the time value of money, the difference in NPV between an asset with an exclusive term of X years and one with an infinite term quickly approaches zero once one passes some rather low number (like 30-50 years).
    http://cyber.law.harvard.edu/openlaw/eldredvash…

    So, once again, I don't know what the right balance is, but in the utilitarian calculus required by the Constitution, I don't see any justification for infinite terms and a much shorter term than we presently have seems reasonable to me. Of course, that doesn't mean the Supreme Court was wrong: In general, Congress, not the courts, should be responsible for policy decisions like how long is hard enough. As I said in my first post, this is a legitimately hard question—which is largely why I stay away from copyright issues to focus on areas where the answers are clearer and more philosophically satisfying.

  • http://enigmafoundry.wordpress.com eee_eff

    Tom:

    I find the Daystar case deeply troubling. In Europe there exists the moral right of the author to be credited with his or her work. Apparently,the Daystar ruling does away with this?

    I can understand that things go into the public domain, but what Daystar seems to imply, is that Tom Bell could sell the book Great Expectations with Charles Dicken's name removed? Please tell me that is not allowed….

  • http://enigmafoundry.wordpress.com eee_eff

    I think there are two things being confused. When Europeans refer to the “moral rights of the author” they (at least in the context of Architectural work, and it is probably the same with authorship of books, poems) mean the right to attach one's own reputation to that work, i.e., to be credited with that work. That's a (much) bigger issue in Europe than it is in USA (I practice architecture in USA, but my father in law does so in Europe)

    Looking at those who pushed for the copyright extension, (Sonny Bono Copyright Extension Act, for example) it seems that Hollywood was always very close to that action, and I doubt that Czeslaw Milosz, for example had anything much to do with the extension of the copyright term.

    Economist had an interesting graphic several years back–starting with the “Queen Anne's Laws” which I believe were even shorter than the term Congress initially proscribed.

    Recall that Congress is under no affirmative duty to establish copyright laws; if they choose to do so, they have the power, but not a duty.

  • http://srynas.blogspot.com/ Steve R.

    Berin you are correct, in a technical sense that copyright: creativity, enforcement, and length of term are separate arguments. While we can slice and dice these aspects, they are all inexorably linked by the assertion that the copyright holder is supposedly entitled to certain rights. Therefore, if any one of them is diminished, the copyright holder will claim to have suffered some form of irreparable harm. So, while each of the aspects can viewed as a separate issue, finding the appropriate balance for the duration and scope of copyright, requires a holistic solution.

    PS: We should have a contest: Will Tom's prediction of a new extension of copyright by 2023 prove accurate? If he “wins”, you heard it here first on the TLF and Tom can treat us to some (non-alcoholic) drinks!

  • http://www.tomwbell.com/ Tom W. Bell

    eee-eff: The exact holding of Dastar remains subject to some controversy, but it has been interpreted very broadly. To be sure, though, it would allow you to sell a public domain work without crediting the author, as those were essentially the facts before the case.

  • http://www.tomwbell.com/ Tom W. Bell

    Berin, I don't think I would describe “author's rights” as”the notion that “the author should stand in 'equal stature' with other economic actors who create an asset like a business from which their children can benefit.” Rather, I would describe it (if I may speak frankly) as a muddle-headed derivation of Hegel's theory of property, one that imagines an author imbues his work with some of his personality. Once you embrace that sort of fantasy, something like cutting up a canvas become akin to stabbing the painter.

    (In addition to my crankiness about the metaphysics behind that theory, I also reject “moral rights” as an idiotically bad translation of “les droites morales.”)

  • http://www.tomwbell.com/ Tom W. Bell

    eee-eff: The exact holding of Dastar remains subject to some controversy, but it has been interpreted very broadly. To be sure, though, it would allow you to sell a public domain work without crediting the author, as those were essentially the facts before the case.

  • http://www.tomwbell.com/ Tom W. Bell

    Berin, I don't think I would describe “author's rights” as”the notion that “the author should stand in 'equal stature' with other economic actors who create an asset like a business from which their children can benefit.” Rather, I would describe it (if I may speak frankly) as a muddle-headed derivation of Hegel's theory of property, one that imagines an author imbues his work with some of his personality. Once you embrace that sort of fantasy, something like cutting up a canvas become akin to stabbing the painter.

    (In addition to my crankiness about the metaphysics behind that theory, I also reject “moral rights” as an idiotically bad translation of “les droites morales.”)

  • http://techliberation.com/2009/08/21/sec-230-is-required-by-justice/ Sec. 230 is Required by Justice

    [...] some cases. If a user orders a website to do something (e.g. posting an infringing video, though we can argue about whether that’s really unjust), PIA eliminates the “following [...]

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  • http://www.nationalreview.com/ JGregg

    the value of the right for heirs under the Copyright Act is NOT in any improved NPV of an under performing piece of intellectual property; it is in fact to right the ship of fairness under the formation of the original contracts! these artists, many of them black and borderline illiterate, where routinely fleeced! to be able to recapture the (c) of a 1956 hit like “hey baby, baby” (or pick your own poison), which just last year perhaps generated $250,000 in synch rights and iTunes sales to EMI or some such label, allows the artist NOT to receive 4% royalty check off of $250,000, but perhaps a one-time lump sum calculated against a revenue stream out 39 years.

  • http://www.nationalreview.com/ JGregg

    the value of the right for heirs under the Copyright Act is NOT in any improved NPV of an under performing piece of intellectual property; it is in fact to right the ship of fairness under the formation of the original contracts! these artists, many of them black and borderline illiterate, where routinely fleeced! to be able to recapture the (c) of a 1956 hit like “hey baby, baby” (or pick your own poison), which just last year perhaps generated $250,000 in synch rights and iTunes sales to EMI or some such label, allows the artist NOT to receive 4% royalty check off of $250,000, but perhaps a one-time lump sum calculated against a revenue stream out 39 years.

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    [...] eventually expire and after some time (how long, depends on the local laws, and if you happen to own copyrights to the Mickey Mouse…) all work ends up in the public domain, that’s how things like the flickr commons can [...]

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