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‘Steamboat Willie,’ Josh Hawley, and Copyright Terms: Explained

May 18, 2022, 8:45 AM

Mickey Mouse’s next big adventure would be a journey into the public domain if Sen. Josh Hawley (R-Mo.) gets his way.

The “Copyright Clause Restoration Act” (S. 4178) would reset copyright terms to a maximum of 56 years, with retroactive effect for copyright owners that meet certain conditions, including The Walt Disney Co. That would end protection for the original 1928 “Steamboat Willie” depiction of the world’s most famous rodent, potentially allowing anybody to use it without Disney’s permission.

This legislation is apparently Hawley’s reaction to Disney’s opposition to Florida’s “Parental Rights in Education” law—also called the “Don’t Say Gay” law by critics—which Gov. Ron DeSantis (R) signed in March.

“Thanks to special copyright protections from Congress, woke corporations like Disney have earned billions while increasingly pandering to woke activists,” Hawley said in a press release. “It’s time to take away Disney’s special privileges and open up a new era of creativity and innovation.”

His proposal would apply retroactively to copyright owners with a market capitalization of more than $150 billion in the motion pictures and videos or arts, entertainment, and recreation industries.

The bill faces likely insurmountable headwinds this Congress, with Democrats controlling both chambers and the White House, and it raises constitutional questions to boot, attorneys say. It’s also stoked broader discussion about whether copyright terms should be shortened.

1. How long do copyrights last?

Copyright durations have been extended several times since Congress set them at 28 years, with an additional 28 years upon renewal, in 1909. That’s the same setup Hawley proposes in his bill.

In 1976, Congress extended terms to 50 years after the death of the author. In 1998, the Sonny Bono Copyright Term Extension Act—also derisively known as the “Mickey Mouse Protection Act"—extended protection to their current length: 70 years after the author’s death.

For what are called “works for hire,” the term is the earlier of 120 years after the work’s creation or 95 years after its publication.

2. Where does Disney fit into copyright extensions?

These extension laws, which applied to existing works as well as new creations, have coincided with the scheduled end of protection for the original depiction of Mickey Mouse, leading many, including Hawley, to say that Disney benefited from “sweetheart deals” and influenced Congress to extend copyright for their benefit.

Others have pushed back on that characterization.

US copyright laws apply equally to all creators, and Disney is no exception—even if the company was instrumental in the 1998 extension—said Mitch Stoltz of the Electronic Frontier Foundation, who also noted that Disney was far from the only company that lobbied on that bill. While notable that the extension came just as the first Mickey Mouse cartoons were to enter the public domain, other factors were also at play, including a 1993 extension by the European Union, Stoltz said.

3. Should copyright terms be shortened?

Though Hawley’s bill is likely dead on arrival, many attorneys agree with the idea of shortening the term of copyright protections.

“In this environment that we’re in where things like technological advances and computer code can be copyrighted, that the idea of protecting something for 95 years seems outdated to me,” Robyn Crowther, a partner at Steptoe & Johnson LLP said.

According to Stoltz, the continual extension of copyright terms impoverishes common culture, making it harder to build on and preserve the past, he said.

There may also be reason to think many copyright holders don’t need the extended durations, as most owners—with the exception of major motion picture producers—before the 1976 extension didn’t renew their copyrights after the initial 28-year term, said Daniel Lifschitz, an associate at Johnson & Johnson LLP.

Michael Carroll, a law professor at American University’s Washington College of Law, said that another problem that arises with longer copyright terms is how to treat works with unknown owners. Procedural guidance is lacking for those trying to clear the use of such “orphaned works,” effectively prohibiting derivative uses that might stem from them.

4. What constitutional questions does Hawley’s bill raise?

Hawley’s bill implicates guarantees protected by at least two amendments in the Bill of Rights, attorneys say.

Retroactive shortening of copyright terms, especially for a singled-out class of companies, would deprive owners of their property rights in violation of the Fifth Amendment guarantee of due process, Paul Goldstein, a law professor at Stanford, said. Doing so to punish Disney for its political statements would constitute viewpoint-based discrimination prohibited by the First Amendment, according to Lifschitz.

Additionally, Hawley’s bill would put the US in conflict with the terms of the Berne Convention, an international treaty that requires a minimum copyright protection term of the author’s life plus 50 years.

“There are lots of gray areas in copyright. There’s no gray area in this bill,” Goldstein said.

5. What happens next?

Further extensions are likely out of the question. Disney has given no signal it intends to lobby for even longer copyright terms, and Congress seems less amenable than they were to previous term extensions.

Disney’s earliest version of Mickey, as he appears in “Steamboat Willie,” will enter the public domain in 2024. Disney, however, has other means to protect the mouse and other properties: trademarks. “That’s where a lot of Disney’s bread is buttered,” said Lifschitz.

It’s unclear for now whether Congress might shorten copyright terms for new works in the future. The dust-up over Disney, though, could point to a new politicization of copyright, traditionally a bipartisan topic.

“I do wonder whether this isn’t the opening of a new chapter in copyright politics,” Carroll said. “I think the idea is if you want to hit Disney where it’s going to hurt, hit them in their copyrights. And that’s a new idea.”

Read more:

Disney’s Copyright Protections Are Latest Target of Republicans

CEOs Feel the GOP Squeeze for Weighing In on Social Issues

Florida Lawsuit Against DeSantis Over Disney Fight Is Thrown Out

To contact the reporter on this story: Riddhi Setty in Washington at rsetty@bloombergindustry.com

To contact the editors responsible for this story: Adam M. Taylor at ataylor@bgov.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com