Lauren Boebert Threatens Disney’s ‘Mickey Mouse Trademark’ Extension, Which Isn’t A Thing

from the mouse-in-the-house dept

This seems to be becoming a thing here in America, this desire by those in power to punish private companies for their stances and speech on controversial topics. Mike recently wrote about how this effort to exert legislative influence on private actors is one of the few bits of bi-partisanship we have these days. And, of course, how it’s absolutely the morally wrong thing to do when either of side of the aisle engages in this sort of thing. Still, I won’t pretend that it isn’t a spotlight of hypocrisy when one particular side crusades against “cancel culture” only to literally attempt to cancel specific forms of culture merely over speech their side of the political spectrum doesn’t like.

Disney has found itself in the crosshairs in this manner recently, due to its vocal opposition to Florida’s new law that governs what some teachers can teach. Florida Governor Ron DeSantis pounded many tables and shook many fists over the company deciding it had an opinion on the matter. Marsha Blackburn did likewise, making some unfortunate noises about how Disney would be punished if it tried to “interfere” in Florida, a state in which the company has many employees and assets.

And, like a deranged moth to a flame of controversy, Colorado Representative Lauren Boebert decided to weigh in herself in a manner that was unintentionally illuminating.

If you can’t read that, it says:

Next year, the woke Disney lobbyists will ask Congress to extend Micky Mouse’s trademark.

I think not.

So much to unpack in such a small tweet. The replies to her did most of the work, frankly, but three points that should be made. First, it’s “Mickey”, not “Micky”. There’s, like, an entire famous intro song for Mr. Mouse that literally spells out the name. Right, Jedi Master Luke Skywalker?

You misspelled Mickey!? How can you NOT remember the song that literally spelled his name correctly in the lyrics??
🎶 M-I-C (See you real soon!)
K-E-Y (Why? Because we like you!)
M-O-U-S-E 🎶
Should someone like you even be in Congress?

I think not.#Duh https://t.co/KylrvL7Ai8 pic.twitter.com/5ns2oR53WP

— Mark Hamill (@MarkHamill) April 5, 2022

Right. Second, and this is really Techdirt territory, trademark and copyright are two massively different things. Different laws, with different purposes, that apply to different assets in different ways. It gets quite frustrating when the general public, or business leaders, don’t bother understanding the difference between the two. But Boebert is a lawmaker talking about laws of which she appears to have zero understanding. This is a threat levied by a lawmaker to not “extend” Disney’s trademark, which is not something Congress has any control over. Instead, she’s probably talking about refusing to extend copyright terms, something that Disney very much has wanted Congress to do in the past (though has shown no inclination to do again this time around).

And on that topic, thirdly, Congress should not extend copyright terms further… but not because Disney, the company, has an opinion and engages in speech about a law in a state in which it operates, has employees, and does business. That sort of thing has a name: fascism. Fascism is the authoritarian control by a limited number of powerful members of the State in a manner that suppresses opposition, criticism, and speech, including by private industry. That is what Boebert is advocating for, openly and nakedly.

So by all means, don’t extend copyright terms past their current absurd levels. But not as punishment for Disney refusing to be bigoted asshats.

Filed Under: copyright, florida, lauren boebert, mickey mouse, trademark
Companies: disney

Disney (Disney!) Accused Of Trying To Lawyer Its Way Out Of Paying Royalties To Alan Dean Foster

from the the-maximalism-only-works-in-one-direction dept

Disney, of course, has quite the reputation as a copyright maximalist. It has been accused of being the leading company in always pushing for more draconian copyright laws. And then, of course, there’s the infamous Mickey Mouse curve, first designated a decade ago by Tom Bell, highlighting how copyright term extensions seemed to always happen just as Mickey Mouse was set to go into the public domain (though, hopefully that’s about to end):

Whether accurate or not, Disney is synonymous with maximizing copyright law, which the company and its lobbyists always justify with bullshit claims of how they do it “for the artist.”

Except that it appears that Disney is not paying artists. While the details are a bit fuzzy, yesterday the Science Fiction & Fantasy Writers of America (SFWA) and famed author Alan Dean Foster announced that Disney was no longer paying him royalties for the various Star Wars books he wrote (including the novelization of the very first film back in 1976), along with his novelizations of the Aliens movies. He claims he’d always received royalties before, but they suddenly disappeared.

Foster wrote a letter (amusingly addressed to “Mickey”) in which he lays out his side of the argument, more or less saying that as Disney has gobbled up various other companies and rights, it just stopped paying royalties:

When you purchased Lucasfilm you acquired the rights to some books I wrote. STAR WARS, the novelization of the very first film. SPLINTER OF THE MIND?S EYE, the first sequel novel. You owe me royalties on these books. You stopped paying them.

When you purchased 20th Century Fox, you eventually acquired the rights to other books I had written. The novelizations of ALIEN, ALIENS, and ALIEN 3. You?ve never paid royalties on any of these, or even issued royalty statements for them.

All these books are all still very much in print. They still earn money. For you. When one company buys another, they acquire its liabilities as well as its assets. You?re certainly reaping the benefits of the assets. I?d very much like my miniscule (though it?s not small to me) share.

You want me to sign an NDA (Non-disclosure agreement) before even talking. I?ve signed a lot of NDAs in my 50-year career. Never once did anyone ever ask me to sign one prior to negotiations. For the obvious reason that once you sign, you can no longer talk about the matter at hand. Every one of my representatives in this matter, with many, many decades of experience in such business, echo my bewilderment.

You continue to ignore requests from my agents. You continue to ignore queries from SFWA, the Science Fiction and Fantasy Writers of America. You continue to ignore my legal representatives. I know this is what gargantuan corporations often do. Ignore requests and inquiries hoping the petitioner will simply go away. Or possibly die. But I?m still here, and I am still entitled to what you owe me. Including not to be ignored, just because I?m only one lone writer. How many other writers and artists out there are you similarly ignoring?

In a video press conference, Foster and SFWA (while admitting that no one on the call were lawyers) said that Disney is claiming that it purchased “the rights but not the obligations” to these works. That’s… weird. And I wish there was a lawyer on the call. Because that doesn’t make much sense.

As SFWA notes, if it is possible to purchase rights without the obligations, then any company could just do a sham sale of the rights without the obligations and get out of paying any royalties ever.

Of course, the details here matter, and we only have one side (and not their lawyers). There may be something very weird in these contracts (and this is, basically, a contract dispute, not a copyright one). But just at a fundamental facts of the situation look disgusting on Disney’s part. If you owe royalties, you pay the royalties. Considering how aggressive Disney is with its own copyrights, you’d think its lawyers would understand that.

Filed Under: alan dean foster, aliens, contracts, copyright, mickey mouse, obligations, rights, royalties, star wars
Companies: disney, sfwa

Irony Alert: Disney (Yes, DISNEY!) Whines About 'Overzealous Copyright Holders'

from the mickey-mouse-is-a-hypocrite dept

Here’s one that might create a bit of a stir. The history of the 20th century and maximalist, ever expanding copyright is often associated with one particular company: Disney. I mean, the 1998 Copyright Term Extension Act (CTEA) is regularly called the “Mickey Mouse Protection Act” and Tom Bell once created this lovely Mickey Mouse Curve showing how copyright terms always seemed to expand just before the original movie starring Mickey, Steamboat Willie was about to enter the public domain:

This pattern might finally (miraculously) end this year — but not because Disney has become enlightened. Rather, it’s mainly because Disney’s lobbying influence is not what it once was, and SOPA seemed to make both Congress and the legacy entertainment industry realize that they would almost certainly lose another such fight on an issue like this (not that there weren’t attempts to slip provisions into trade agreements that had the potential to expand copyright terms).

However, it does seem notable — as first spotted by Eriq Gardner at The Hollywood Reporter — that Disney has now been put in the possibly awkward position of complaining about “overzealous copyright holders,” and talking about the importance of user rights and fair use to protect free speech and the First Amendment. No, really.

Disney, of course, owns ABC. Back in May (though the complaint appears to incorrectly state March), ABC aired a two-hour program entitled The Last Days of Michael Jackson. The Michael Jackson Estate was not pleased and sued for copyright infringement. The complaint itself is quite a read. It completely mocks the program in question:

Although titled The Last Days of Michael Jackson, the program did not focus on Michael Jackson?s last days. Rather, it was simply a mediocre look back at Michael Jackson?s life and entertainment career. A Rolling Stone review described the program as ?offer[ing] little in the way of new revelations or reporting and at times seems heavy on armchair psychoanalysis and unsupported conjecture.? The magazine was being too generous. The program contained nothing ?in the way of new revelations or reporting.?

It also digs deep on Disney’s well-known history for maximalism:

Disney?s media business depends on its intellectual property and, more specifically, the copyrights it holds in its well-known characters, motion pictures, music, and the like. Disney has never been shy about protecting its intellectual property. Indeed, its zeal to protect its own intellectual property from infringements, real or imagined, often knows no bounds.

a. Disney has threatened to sue independent childcare centers for having pictures of Mickey Mouse and Donald Duck on their walls, forcing them to remove all pictures of Mickey or Donald?and other anthropomorphized mice or ducks?rather than face ruinous litigation from one of the world?s largest corporations.

b. Disney once sued a couple on public assistance for $1 million when they appeared at children?s parties dressed as an orange tiger and a blue donkey. Apparently, these costumes cut too close to Tigger and Eeyore for Disney?s tastes.

c. Disney takes a very narrow view of copyright law?s ?fair use? doctrine. For example, just a few years ago, it sent DMCA takedown notices to Twitter, Facebook, and other websites and webhosts, when consumers posted pictures of new Star Wars toys that the consumers had legally purchased. Apparently, Disney claimed that simple amateur photographs of Star Wars characters in toy form infringed Disney?s copyrights in the characters and were not a fair use.

It’s hard to deny any of the above. And thus, the complaint, with a healthy dose of snark, notes Disney’s fairly blatant hypocrisy:

Like Disney, the lifeblood of the Estate?s business is its intellectual property. Yet for some reason, Disney decided it could just use the Estate?s most valuable intellectual property for free. Apparently, Disney?s passion for the copyright laws disappears when it doesn?t involve its own intellectual property and it sees an opportunity to profit off of someone else?s intellectual property without permission or payment.

It claims “at least thirty different copyright works” were used without permission. These included clips from songs and music videos, concert footage and the Jackson Estate’s own documentary footage. So now Disney has answered and finds itself, quite incredibly, arguing against overzealous copyright holders and about the importance of protecting the First Amendment from being harmed by excessive copyright claims. Literally.

This case is about the right of free speech under the First Amendment, the doctrine of fair use under the Copyright Act, and the ability of news organizations to use limited excerpts of copyrighted works?here, in most instances well less than 1% of the works?for the purpose of reporting on, commenting on, teaching about, and criticizing well-known public figures of interest in biographical documentaries without fear of liability from overzealous copyright holders.

I agree with everything in that paragraph. I’m just shocked that it’s Disney stating this. Disney is not the most credible defender of the First Amendment and fair use. Nor is it the most credible defendant to be yelling about overzealous copyright holders. Throughout the answer to the complaint Disney insists that its uses of the Michael Jackson works “were included in the Documentary on a transformative and fair use basis.”

Without having seen the documentary, it’s impossible to say whether or not the uses truly qualify as fair use, though the argument that they are sounds reasonable. But the idea that Disney is the one fighting for fair use and against overzealous copyright holders remains stunning and bizarre. I’d like to believe this is Disney coming to its senses and making amends for the century of harm its done thanks to copyright, but it seems much more likely that this is just an opportunistic defense of fair use, and the company remains firmly in the camp of supporting ever expanding copyrights.

I wonder how Disney would feel if someone showed up to future hearings in the case wearing an unauthorized Mickey Mouse costume?

Filed Under: copyright, copyright term extension, fair use, first amendment, free speech, michael jackson, mickey mouse, overzealous copyright holders
Companies: abc, disney, michael jackson estate

NYPD Asks Disney, Marvel To Abuse IP Law To Help Rid Times Square Of Spiderman, Mickey Mouse

from the government-ordained-trolling dept

For years, New York City mayor Rudy Giuliani and the NYPD waged a small-scale war in Times Square to turn it into a family-friendly tourist attraction on par with Las Vegas. It succeeded… mostly. Porn shops were replaced with toy stores and chain restaurants.

The war continues, even after this overhaul. Anywhere tourists gather en masse will draw the attention of less-desirable city residents. Panhandlers and street performers continue to converge on Times Square, hoping to earn a few bucks from out-of-towners. Much to Bill Bratton and the NYPD’s chagrin, Times Square continues to draw a disproportionate amount of New York City’s boobs. And topless women.

[A]t midday Thursday, there were 38 costumed panhandlers, five topless ladies and an artist who paints people’s naked bodies in full view in Times Square…

The city is trying to figure out how to keep these topless women out of an area where tourists can also witness the spectacle that is the nationally-infamous Naked Cowboy. Nothing seems to be working especially well and any efforts targeting female toplessness specifically will obviously (and correctly) be hailed as sexist (and a possible violation of the First Amendment).

The other element it wishes to banish is a direct result of the city’s decision to turn Times Square into Disneyland Lite: costumed street performers. Many dress as Disney/comic book characters and make money by charging tourists for photos with them. Some of these performers are known to become aggressive when photos are taken without “permission.” (Read: in exchange for $$$) Others are known to commit more heinous acts.

There’s been a series of incidents and arrests since then, including accusations of groping by Cookie Monster, and also Woody from “Toy Story.”

Spider Man was arrested in 2014 for allegedly demanding tips in an aggressive manner. Earlier this year, a Youtube video went viral of another Spider Man locked in a brawl with a heckler right in front of Toys R Us.

So, New York is still New York even if Times Square isn’t really Times Square anymore.

Police commissioner Bratton wants to add more officers… to enforce not much of anything, apparently.

Bratton said the unit was in the works for some time but was fast-tracked after the media began focusing on the desnudas and how their kind of panhandling can be “easily spread to other parts of the city.”

That said, Bratton added, “there’s only about one crime reported every day” in Times Square.

This new unit will patrol Times Square and attack “quality of life” issues… like painted women. Or intellectual property infringement.

The city’s top cop said Thursday they got the cold shoulder from Disney and Marvel when they tried to enlist them in the fight against the costumed characters preying on tourists in Times Square.

The NYPD specifically asked the companies if they wanted to charge the hustlers who wear Mickey Mouse, Spider-Man and other well-known costumes with copyright infringement.

Look! It’s IP law abuse to the rescue, a favorite tactic of this IP-abusing city government.

First off, these costumed performers would more likely fall under trademark infringement than copyright infringement. The characters are covered under trademark law. Creative works using these characters are what’s covered by copyright. But that distinction doesn’t matter to these blustering officials. They’re only concerned with enlisting the public to fight their battles for them. Any differences between copyright and trademark enforcement can be sorted out by Disney, Marvel, et al.

Fortunately, the companies seem less willing to abuse IP law to help out Bratton and the NYPD. Disney’s lack of interest in filing lawsuits isn’t altruistic, however. It won’t participate with Bratton’s plan because it doesn’t know who these performers are. The amount of time and money spent to discover this would easily outweigh any compensation gained.

Disney — being Disney — prefers to have legislation written on its behalf.

The bill — which would require the horde of Spider-Men, Mickeys and Minnies and other costumed panhandlers to undergo background checks and carry IDs — was introduced back in September by Councilman Andy King (D-Bronx).

[…]

“We have been for years working with previous and current administrations as well as the City Council trying to get legislation passed that would require registration and identification of these costumed characters,” said Disney spokeswoman Zenia Mucha.

This would solve Disney’s (and Marvel’s) “problem” without either corporation having to look like an IP thug. But the legislation isn’t going anywhere and Bratton wants his Time Square free of Mickeys and Spidermen now. So, he’s asking these companies to file baseless and pointless lawsuits almost solely on behalf of Bratton and his cleanup crusade.

The city’s top cop is also willing to let Disney, Marvel, etc. work for free.

“They want no part of it,” Police Commissioner Bill Bratton said on the John Gambling radio show. “We’ve encouraged Walt Disney, ‘Put your characters out on Broadway free of charge so people don’t have to worry about their kids being groped,’” he said. “We said to them, effectively, ‘Since you control the rights of them, put them out in front of the Disney Theater.’ They want no part of it.”

Disney and Bratton may not see eye-to-eye on the specifics of the solution, but they do agree on one aspect: someone else should do all the work.

The regulatory angle (licensing performers) Disney prefers puts the city and its police force to work for the companies. Bratton’s suggestions (filing bogus copyright infringement lawsuits, “free” costumed performers) puts the companies to work for the city. As long as they only agree on this element, nothing will ever move forward.

And once again, we see that government entities — like many private companies — are quick to turn to abuse of IP protections once they’ve run out of good ideas — or, in this case, when they didn’t have any good ideas to begin with.

Filed Under: bill bratton, characters, copyright, mickey mouse, nypd, spiderman, times square, trademark
Companies: disney, marvel

It Appears Mickey Mouse May Have Picked An Intellectual Property Fight With The Wrong Mau5

from the oops dept

I actually don’t think that Disney’s trademark opposition to Deadmau5’s attempt to trademark his mouse-shaped helmet thing is that crazy. Disney hasn’t gone after Deadmau5/Joel Zimmerman all these years for using it. They’re just saying “hey, maybe he shouldn’t have a registered trademark on that.” And they may have a point. Yes, the designs are different, and no, there isn’t likely to be much confusion between Deadmau5 and Mickey, but why is Deadmau5 seeking to get a registered trademark on this in the first place?

That said, if notorious copyright maximalists Disney were going to pick an intellectual property fight with someone, it would probably make sense to make sure their own mouse house is in order, no? Apparently, it’s not, because Deadmau5 has discovered that… Disney (yes, I’ll repeat that: Disney) has uploaded some of his music on its website without permission. The music was on a “re-micks” (ha ha, get it?) page on Disney’s website that has since been taken down — but not before Deadmau5’s lawyers sent a takedown letter over it. The letter also, amusingly, makes a trademark claim, though frankly the trademark claim is quite weak. Deadmau5’s lawyer is basically claiming trademark infringement over the video as well. That almost certainly wouldn’t fly in court.

I tend to not be a fan of takedowns in general, but it’s pretty clear that this is basically just being done to call out Disney’s hypocrisy here. Not that I expect the message to get through. Still it’s surprising that such a copyright maximalist company would be posting videos like that…

Filed Under: copyright, deadmau5, joel zimmerman, licensing, mickey mouse, takedowns, trademark
Companies: disney

Crowdsourcing A List Of How Disney Uses The Public Domain

from the something-useful dept

We’ve written plenty of times about the importance of the public domain around here, and one of the biggest beneficiaries of the public domain has been Disney, a company which has regularly mined the public domain for the stories it then recreates and copyrights. Of course, somewhat depressingly, Disney also has been one of the most extreme players in keeping anything new out of the public domain, as pointed out by Tom Bell’s excellent “mickey mouse curve” showing how Disney has sought to push out the term of copyrights every time Mickey Mouse gets near the public domain.

All this despite the fact that Mickey Mouse was almost certainly was an infringing work when it was created, copying multiple sources that were still covered by copyright. Oh, and also there’s evidence that Disney screwed up its early copyright registrations on Mickey Mouse, suggesting that it really already is in the public domain, even if Disney will never admit that.

Either way, as we get closer to the next attempt to extend copyright terms in the US (and you know it’s coming), Derek Khanna has decided to crowdsource a list of all of the public domain works that Disney has relied on over the years. He’s also looking for revenue figures on all of those works, in an attempt to show just how much Disney has profited off of the public domain (and hopefully to shut up those who argue that when a work falls into the public domain, it suddenly loses its value). As Khanna notes:

While Disney took and reused from the public domain, none of the works created by Disney, including derivative works based upon public domain works, have entered the public domain for others to build upon. And if current policy is extended — they never will.

MPAA/RIAA/Disney lobby Congress and inform the public that copyright should last forever because it’s their “property” and that it’s never ok to use or build upon their property without paying. Under the content industry’s vernacular, if taking and remixing other people’s work without paying for it is always stealing then the Disney Corporation is responsible for one of the greatest thefts in world history.

If you can, please help and contribute to the list of public domain works that Disney has relied upon.

Filed Under: copyright, crowdsourcing, mickey mouse, public domain
Companies: disney

Disney Wants Trademark On Dia De Los Muertos To Sell You Fruit Snacks

from the mierda dept

So, hey, remember that one time that Disney thought it’d be a pretty sweet idea to celebrate the death of Osama bin Laden by applying for trademarks on Seal Team 6’s name so they could apparently sell snow globes? Pretty much everyone who came across the story dropped a verbal brick on the Mouse for what looked like quite an elegant mix of cynicism and a lack of patriotism, causing them to drop their applications shortly after. Personally, I’m having a hard time thinking of a better exemplification of what is currently the ‘American way’ than locking up language due to the brave actions of others, but I guess my brand of cynicism just isn’t cool with the kids these days.

Anyhoo, guess who now wants to lock up the name of a traditional Mexican holiday to sell some swag? Yup, Mickey is back to his old habits with multiple applications on “Día De Los Muertos”, more commonly known as the Day of the Dead.

Disney filed 10 requests in the U.S. Trademark and Patent Office this month to coin the phrase. Disney’s filings are mainly for merchandise, presumably connected to an upcoming film. The areas they are hoping to secure include “education and entertainment services,” “fruit preserves; fruit-based snack foods,” “toys, games and playthings,” “clothing,” “footwear,” “backpacks,” “clocks and jewelry” and more.

You know, as someone who likes to think they write things people occasionally find funny, I have to tell you how special it is when someone out there does all the setup work for you. I mean, a national holiday during which families come together to pray for their recently departed… and you’re going to make fruit preserves and snacks about it? Seriously, I don’t even have to write a joke about this. It writes itself. What are they going to call the snacks, Fruit Roll-Out Your Deads? Berry Departeds? It’s a gold mine!

As for the other areas in which they applied for the mark, it’s worth noting that approximately an infinite number of other folks are already producing Día De Los Muertos merchandise. Note that nearly all of the markets Disney applied for are covered already, with the exception of all the fruit snacks and preserves. In the article, some helpful trademark lawyer made sure we all know that Disney getting their marks approved wouldn’t mean people couldn’t celebrate the holiday, because ostensibly we’re all complete morons and didn’t know that already. The point is that making a movie shouldn’t allow Disney to suddenly lock up the name of a traditional holiday for markets that are mostly already well served by other providers.

Hell, why not just lock up Christmas and be done with it? Oh, wait….

Update: And…. just like that… withdrawn.

Filed Under: day of the dead, dia de los muertos, fruit snacks, holidays, mickey mouse, trademark
Companies: disney

DailyDirt: Kids Don't Just Eat Anything You Give Them…

from the urls-we-dig-up dept

Kids are notoriously picky eaters when it comes to anything that isn’t a dessert. Parents aren’t helped when their kids are bombarded by ads on TV for all kinds of junk food. But here are a few food efforts that might divert kids’ attentions back to healthier foods.

• Disney is adopting new standards for food advertising on its shows targeting kids and families — to promote fruit and vegetable consumption and meet healthy nutritional guidelines. Awesome, now all healthy food will be approved by Mickey! [url]
• Mickey Mouse isn’t the only fictional character who can influence what kids eat. Superheroes can, too. What would Batman eat? [url]
• Food trucks are trendy now, so what better way to bring free meals to kids? Sounds better than an ice cream truck… [url]
• Exercise your palate and try new foods that are bitter. Instead of sticking with salty and sweet (which are generally associated with junk food), a more bitter-flavored diet might provide a healthier range of food. [url]
• To discover more food-related links, check out what’s floating around in StumbleUpon. [url]  

By the way, StumbleUpon can also recommend some good Techdirt articles, too.

Filed Under: batman, dessert, food, food trucks, health, kids, mickey mouse
Companies: disney

Copyright Extension: A Way To Protect Hollywood From Having To Compete With The Past

from the makes-sense dept

There has been plenty of talk over the years about why we keep extending copyright. Of course, we’ve discussed the infamous Mickey Mouse Curve, showing how copyright extension always seems to happen whenever Mickey Mouse is going to hit the public domain.

However, Julian Sanchez notes that this doesn’t explain the whole story. After all, if it was just about protecting the very, very small number of works that still have commercial value after so many years, then you would think we would have evolved away from the “copyright absolutely everything for as long as possible” model, to one that plenty of people have suggested: one where there are regular (and perhaps escalating) recurring fees to keep renewing your copyright registration. That way, works like Mickey Mouse could stay covered by copyright, but all the other works which have been otherwise abandoned can actually contribute back to culture and be used by anyone who wants to make something with them.

As Sanchez notes, you would think that even the Disneys of the world would like this model better. Even if it had to pay such recurring fees, the overall cost will ultimately be tiny compared to the value of the copyright. Plus, it would then open up a treasure trove of public domain material that they could use in their own works — and Disney, in particular, has a well known history of making use of public domain works.

So why do we still have a “copyright everything for as long as we live, plus 70 years” (for now)? Sanchez posits a compelling theory. That Disney and other big copyright holders like this, because it keeps them from having to compete with their own back catalog:

Insanely long copyright terms are how the culture industries avoid competing with their own back catalogs. Imagine that we still had a copyright term that maxed out at 28 years, the regime the first Americans lived under. The shorter term wouldn’t in itself have much effect on output or incentives to create. But it would mean that, today, every book, song, image, and movie produced before 1984 was freely available to anyone with an Internet connection. Under those conditions, would we be anywhere near as willing to pay a premium for the latest release? In some cases, no doubt. But when the baseline is that we already have free, completely legal access to every great album, film, or novel produced before the mid-80s—more than any human being could realistically watch, read, or listen to in a lifetime—I wouldn’t be surprised if our consumption patterns became a good deal less neophilic, or at the very least, prices on new releases had to drop substantially to remain competitive.

This story certainly fits with Disney — who famously decides to completely stop selling certain old classics and put them “in the vault” for a while, pulling them off the market entirely. For Disney, it’s all about keeping out competition, which it wouldn’t be able to do if copyright didn’t last so long.

This actually reminds me of the missing 20th century of books that we discussed a few months back, highlighting how the amount of new works from each decade drop off rapidly the further back you go, until you hit 1923 — the current cut-off for the public domain.

Sanchez does note that it’s possible this actually drives more investment into new works, since they don’t have to compete with the old. And, if you believe (which he doesn’t) that new works automatically have more value than old, then you could make a twisted sort of argument that this kind of protectionism, and effective locking-up of about a century’s worth of creativity, does “promote the progress” in that it moves the focus to newer works, rather than older ones. But I don’t buy that at all. It ignores the fact that the giant gap doesn’t just represent competitive works, but also raw material and inspiration for all kinds of amazing new works — which are effectively killed off.

That gap represents lost culture. But, for the big legacy entertainment players, it might also represent repressed competition. That shouldn’t really be surprising. After all, that is the whole purpose of government-granted monopoly privileges.

Filed Under: competition, copyright extension, julian sanchez, mickey mouse, public domain
Companies: disney

Too Much Copyright: This Generation's Prohibition

The folks over at ReasonTV have put together a great episode about the state of copyright law today. Hosted by Zach Weissmueller, the video includes three guests. Professor Tom Bell, who is well known for his useful depiction of the insanity of copyright extension via the Mickey Mouse curve, Cheezburger CEO Ben Huh, and the MPAA’s Ben Sheffner.

There’s a nice animation of the Mickey Mouse curve which is even more powerful than the standard image version: Sheffner trots out the usual lines about property rights and how we’re going to see less content going forward, which Bell rightly scoffs. The video then uses our Sky Is Rising report to highlight how silly Sheffner’s claims are. Sheffner also has the unenviable task (because it’s a despicable position to take) of claiming that site blocking is a perfectly reasonable solution. Go censorship!

It’s also nice to see ReasonTV highlight the ridiculousness of copyright laws today by refusing to use any material covered by copyright to demonstrate certain points. So, rather than show Mickey Mouse, they show three revolving balls, and ask you to imagine how they might come together to form a mouse-like shape.

Is this an exaggeration of the restrictions in place today? Sure. They have a perfectly valid fair use claim to showing Mickey Mouse — but they’re being safe in an era where people are getting sued for the same sorts of things all the time. And, in an era where the MPAA argues, with a straight face, that blocking entire sites is a reasonable remedy, you can understand why they’d rather be safe than sorry.

The whole thing is worth watching, but the key point really comes at the end from Ben Huh, and it’s a point that we’ve been raising for years:

This disconnect between the public’s view of copyright and fair use and what should and should not be prosecuted vs. the copyright maximist’s view of the law is our generation’s prohibition. The law no longer reflects what the society believes to be true. And I think that if they continue to go down that route, they’re going to see even bigger backlash.

This is such a key point, and one we’ve raised over and over again. The disrespect for copyright law today is not because people are uneducated or immoral. It’s because copyright law just doesn’t make any sense at all. It’s so disconnected from reality and societal norms, that people can’t respect it. The fact that the industry’s response to this is to push to make the laws even more ridiculous and push them further away from people’s natural tendencies, is only going to serve the opposite purpose of the maximalists’ intentions. They are driving an entire generation into thinking that the whole of copyright law is entirely pointless.

Filed Under: ben huh, ben sheffner, mickey mouse, sky is rising, tom bell
Companies: mpaa, reasontv