Since the U.S. Copyright Act became law in 1790, copyright duration has been slowly increasing. In 1790, copyright duration was a mere 14 years, with a right to renew for one additional 14-year term should the copyright holder still be alive. At that time, only maps, charts, and books were eligible for copyright protection. It wasn’t until the revised Copyright Act of 1870 that painting drawings and other images could be copyrighted. The 1870 Copyright Act also required a copyright notice (©, [DATE], by [Author]) as well as registration with the U.S Copyright Office.
However, the most dramatic changes to copyright duration came primarily from companies like Walt Disney Co. and Gershwin Music wanting extra protection for their lucrative media properties, like Micky Mouse. The Copyright Act of 1976 increased copyright duration to the Life of the Author plus 50 years, as well as eliminating the need for a copyright notice and registration with the Copyright Office. Copyright became automatic at the time of creation but also became retroactive for older works. The result was that many works that did not have copyright protection due to the lack of a copyright notice and/or registration were given copyright protection.
Disney lobbied to extend Copyright Duration
Then in 1998, Congress passed the Sonny Bono Copyright Extension Act also known disparagingly as the Mickey Mouse Copyright Act. With only five years left on Disney’s ability to protect Mickey Mouse, Disney successfully lobbied Congress to once again change copyright duration, lengthening copyright for works created on or after January 1, 1978, to “life of the author plus 70 years,” and extends copyrights for corporate works to 95 years from the year of first publication, or 120 years from the year of creation, whichever expires first. That pushed Mickey’s copyright protection out to 2023.
Proponents say that because the copyright term extends a copyright holder’s exclusive rights to decide how, when, and where their creative works are used, creators can secure the economic benefit they deserve in return for the efforts they put into the creations. In particular, the film, music, and publishing industry leaders claim that longer terms of restriction are necessary to incentivize creativity and innovation. However, these companies also generate significant income through their monopolies over characters, such as Mickey Mouse.
On the other side are those against copyright term extensions, primarily individual artists, who believe that copyright duration is nothing more than a corporate money grab, one that is detrimental to artists and other creators. In particular, long copyright duration doesn’t compensate creators as very little of the revenue generated from the extended period of protection ever makes it into the hands of the creators. Instead, long copyright terms deprive the public of artistic resources that can be used to create new works. The creators on this side of the argument believe that creative thoughts often develop incrementally, not in a vacuum, but instead built upon the work of others. Since copyright allows the copyright holder to not only have rights to their specific work but any derivatives created based on that work, the natural process of building on others’ works is stifled.
If Congress were to shorten copyright duration, creative works would enter the “public domain” (copyright-free works) more quickly, providing new sources from which authors can develop new ideas. Instead, the multiple copyright duration extensions by Congress denied a tremendous amount of material to creators. For example, Arthur Conan Doyle’s infamous character, Sherlock Holmes, was first put to paper in 1887, but since the last story was published in the 1930s, the Conan Doyle estate had managed to maintain copyright protection on the character for an extended period. So a character created 128 years ago, until recently, still required permission and hefty licensing fees for the usage.
While some would say that Holmes is a valuable property and that value shouldn’t be taken away from the creator’s family, the same also holds true for any copyrighted works, including ones that few people would recognize today. Yet, we must still wait 100 years or more for some of them to be resurrected or used in some way to create a new work.
Fair Use as a remedy for Copyright Duration
There are several exceptions to copyright protection that do allow creators to use the works of others. First, ideas do not receive copyright protection, only the execution of those ideas. Let’s take the case of Sherlock Holmes mentioned earlier. While an author or filmmaker could not use Doyle’s character names, plot lines, visual appearance, or personality of any main characters, they could craft a detective story in the Holmes’ style. There have been countless novels and movies based on the main character with a savant-like ability to analyze clues from a crime with deductive reasoning.
The same is true for Harry Potter. Lev Grossman’s “Magicians,” a story about a student who discovers his magical powers and is sent off to a wizarding school. Magicians does not include a young boy with a scar on his head, nor does he have a nemesis like Voldemort, as those characters and plot lines are protected. But the idea of a boy going to a wizarding school is open to anyone to use. The same holds true for the thousands of fantasy novels that include Elves, Orcs, Goblins, Dragons, and other magical beasts influenced by J.R.R. Tolkien. Yet, the Hobbit and Lord of the Rings are still under copyright protection.
Creators can also use other artists’ works under the legal doctrine of fair use, which is a defense against a creator claiming copyright infringement of their works. Determining what falls under fair use can be complex, and since much of the law surrounding fair use is derived from the results of court cases, what is fair use can vary depending upon what part of the U.S. you reside in. Generally, a work is considered fair use if it is transformative, meaning that the new version finds a new audience that the original work does not find appealing.
Appropriating other artists’ creative work is nothing new. The process even fostered an art movement known as . . . wait for it . . . “Appropriation Art.” Artists such as Marcel Duchamp and Andy Warhol thrived on appropriation. Andy Warhol’s Campbell’s Soup Can series (1961) uses appropriated copies of the original labels exactly as they are seen on the cans in any store. He took the traditional still-life and instead used them as portraiture. Warhol thought using Campbell’s Soup would stimulate product recognition (just like in advertising) and be equated with the company’s marketing campaign at the time; “Campbell’s soup . . that Mmm Mmm good feeling.” His underlying message exposed consumerism, commercialism, and big business’ effect on society.
Several cases in recent years have broadened the concept of fair use, with the most important case involving famed appropriation artist Richard Prince. Prince became well-versed in copyright infringement from a three-year battle over his appropriation of Patrick Cariou’s photos of Rastafarians. Prince made what many considered mere minor alterations to Cariou’s work but claimed fair use. Most scholars and attorneys assumed Prince would lose, but he won, making it easier for many other artists to claim fair use when appropriating other artists’ work. The Court said that Prince’s use of the photos was transformative and that the derivative works appealed to an entirely different sort of collector than Cariou’s, including well-known clients such as Beyonce and Jay-Z. Prince continues to be pushing the boundaries of fair use. His latest legal challenge involves using Instagram photos without permission to create new art pieces, which he sold as large prints for $100,000 each. The case is still ongoing.
So while copyright duration has kept works from entering the public domain, artists are still finding ways, such as through fair use, to appropriate. Unfortunately, fair use only applies to the U.S., so artists in other countries must find a different approach.
Copyright Duration has also highlighted another problem that has been a thorn in the side of creators; orphan works, which are defined as works in which copyright exists, but the copyright owner is either unknown or cannot be located. Recall that before 1976, a work required a copyright notice © and registration with the U.S. Copyright Office. If the work did not have a copyright notice, then it did not receive copyright protection. Even if the notice were somehow inadvertently removed, the work would still have a registration at the Copyright Office. However, any work without notice and registration would have become part of the public domain after a few years and could then be used freely.
As mentioned earlier, retroactive copyrights from the 1976 Copyright Act updated gave works that had no copyright registration extended copyright protection. Yet, without registration, many of the copyright holders could not be easily identified. Without a known copyright holder, these works should enter the public domain. The same is true for any new work where the artist cannot be found. Ideally, these works would enter the public domain after a shortened period of time, but under the current law, they will maintain their copyright for at least 70 years from their creation date. Without a copyright holder available, an artist or author could use the work because there would be no person or company with the power to exercise the copyright. However, not being able to find the copyright holder and there not being a copyright holder are very different things. If an artist or author tries to use an orphaned work to create new works, they risk the copyright holder making themselves known in the form of a copyright infringement lawsuit, especially if the new work had made significant revenue.
Without knowing whether a copyright holder exists means that thousands of works that could be added to the public domain remain in limbo until Congress provides a solution. Unlocking the potential of these orphan works has been a key issue for the Copyright Office, but not for Congress. An Impact Assessment Report on Orphan Works by the Copyright Office in June 2012 stated that ‘up to 2,500 museums, 3,393 public libraries, 3,000 community archives, 979 academic libraries and approximately 3,500 trust archives’ which hold orphan works would benefit. Unfortunately, there seems to be little appetite in Congress to address the issue.
While there are legitimate reasons as to why copyright duration may be considered too long, the United States and other signatories of the Berne Convention (the international copyright treaty) all agree on the current length of protection. Any reductionwould require so many stakeholders and countries to agree that it is unlikely to happen. However, given the potential revenue losses that media corporations may see in the future as their characters, books, movies, and art get closer to losing copyright protection (such as Mickey Mouse), you can be sure that Congress will begin to receive pressure from lobbyist to further extend copyright duration.