(UPDATED) When the Copyright Act was first enacted in the United States, the duration only lasted 14 years. Today, copyright duration can last over a century. Why such a drastic change? Some say it is all due to Disney’s copyright of a cute mouse named Mickey. However, it is time for that myth to come to an end.
Copyright Revision Timeline
The first Mickey Mouse cartoon, Steamboat Willy, premiered in 1928, and at that time, the Disney copyright for the infamous mouse lasted only 28 years, although it could be renewed for an additional 28 years. This was already significantly longer than the founders had intended.
Steamboat Willie (1928)
In the Copyright Act of 1790, the initial 14-year term was allowed to be renewed for one additional 14-year term as long as the author or creator was alive at the end of the first 14 years. Registration with the U.S. Copyright Office and use of a copyright notice (© Company Name (1790)) were also required. If you didn’t register with the U.S. Copyright Office or add the copyright notice to the work, it immediately entered into the public domain, so any person or company could use it in any way they wanted without permission from the creator. If Mickey Mouse had been created back then, it wouldn’t have been eligible for copyright protections since copyright was only available for maps, charts, and books.
The Copyright Act of 1831 was the first major revision to U.S. Copyright Law, mainly due to lobbying efforts by American lexicographer Noah Webster. As part of this revision, the copyright duration changed from 14 years to 28 years, with an option to renew the copyright for another 14 years. Additionally. Copyright protection became available for musical compositions (though this protection only extended to reproductions of compositions in printed form; the public performance right was not recognized until later)
The Copyright Act of 1909 was the next major overhaul of copyright protection, signed into law by President Theodore Roosevelt. Under the 1909 Copyright Act, copyright duration remained at 28 years for the initial period, but the extension of the term went from 14 years to 28 years if renewed. More importantly, motion pictures were also given copyright protection. Before the 1909 Act, motion pictures had to register their works as a series of still photographs. When Steamboat Willie was created in 1928, it received 56 years of protection with the renewal.
With these three significant pieces of legislation, Disney had not even existed to take part, or Influence, the minds of the members of Congress. Disney didn’t have to worry about losing its Steamboat Willie Copyright until 1984.
The Disney Copyright myth is based on only two events
As 1984 came closer, though, Disney had to deal with the impending loss of copyright on its mascot, so the company used its lobbying efforts to convince Congress that copyright duration needed to be extended. The subsequent significant revisions came with the Copyright Act of 1976.
While Disney certainly had the power to influence members of Congress, and it is possible, or even likely, that Disney’s lobbying had some effect on the changes made in the 1976 Copyright Act, copyright duration was only a tiny part of the revisions.
Under the 1976 Act, instead of the maximum of 56 years (with extensions) as indicated by the 1909 Copyright Act, authors were granted protection for their life plus an additional 50 years. For works owned by corporations, the 1976 legislation also granted a retroactive extension of 75 years from publication for works published before the new system took effect, pushing the Mickey Mouse copyright protection to 2003.
However, most of the revisions, including duration, were designed to accord with copyright law, practices, and policies adopted by the Berne Convention, the international copyright treaty, which the U.S. had not signed (but was expected to do so shortly after that). The United States signed onto the Berne Convention in 1989, allowing for a smooth transition due to the 1976 changes closely resembling the Berne Convention requirements.
Also, the 1976 Copyright Act revisions codified the concept of fair use, which allowed people to use copyrighted works without permission in some specific cases. They codified the first sale doctrine, which gave Disney and others less control over their copyrights.
Two decades later, as the copyright term for Mickey Mouse was set to expire in 2003, Disney became a strong advocate for the extension of copyright terms. In 1998, the Sonny Bono Copyright Term Extension Act was signed into law, which extended the copyright term for works created by individuals from the life of the author plus 50 years to the life of the author plus 70 years. This act also extended the copyright term for works created by corporations from 75 years to 95 years after creation, giving Mickey Mouse a copyright extension until 2024.
The chart below illustrates the “Mickey Mouse Curve,” showing how copyright duration has changed close to each time the Disney copyright for Mickley Mouse was about to expire.
While it is not accurate to say that the Disney Corporation and Mickey Mouse were solely responsible for these changes, they were undoubtedly a significant driving force behind the push to extend copyright terms. The company argued that the extension was necessary to protect its valuable intellectual property, such as Mickey Mouse, and to allow it to continue to invest in the creation of new works.
Some widely criticized the act as a giveaway to corporations and a threat to the public domain, but it has had a lasting impact on copyright law in the United States. One author noted that we are “the first generation to deny our own culture to ourselves” since “no work created during your lifetime will, without conscious action by its creator, become available for you to build upon.”
Will Copyright Duration Change Again?
Intellectual property assets, like Disney copyrights, are essential assets for the company and should be protected. Still, the power of the Disney lobby has waned over the years, so even if they were intent on using their lobbying efforts to, once again, increase the copyright duration term, it would be a lot more difficult for them. The company is not the powerhouse it once was. The rise of the Internet has changed the political landscape on copyright issues and allowed new media companies like Netflix and Amazon to build out streaming services that rival Disney.
Major lobbying organizations like the Electronic Frontier Foundation or Creative Commons are much larger than in 1998. Internet companies like Google didn’t even exist 20 years ago but have become a powerful force against copyright because their business model requires providing content to the public, such as thumbnails on Google images. Copyright significantly impacts their ability to deliver content, so they have become powerful opponents of expanding copyright protections.
Most importantly, the Internet has provided a greater flow of information, allowing for broad grassroots engagement on copyright issues. A great example was the massive online protests against the Stop Online Piracy Act (SOPA) in 2012. SOPA would have forced Internet Service Providers, like phone and cable companies, to enforce blocklists of sites accused of promoting piracy.
The defeat of SOPA and subsequent protests against congressional overreaches, like net neutrality, has essentially ended efforts to expand copyright protection through legislation. Since 2012, there has been no significant legislation around copyright.
Additionally, conservatives today see Disney aligning heavily with liberal social causes, and with the current polarization in Congress, Republicans are likely to vote against anything Disney lobbyists propose. There would be minimal appetite by Republicans in Congress to reward Disney with a copyright extension.
As it stands, Steamboat Willie will enter the public domain on January 1, 2024. Disney will no longer be able to prevent other artists or companies from using the early likeness of Micky Mouse as he appeared in that short film. However, the current version of Mickey Mouse, as seen in Fantasia (1940), is still protected for another twelve years. The 1940 version of Mickey Mouse is also protected under trademark law, so it is unlikely that we will see the Mickey Mouse that we know and love today enter the public domain any time soon.