Don't free Mickey

I doubt that this is exactly what Ross Douthat had in mind, but I have been thinking for a while about one version of extending the duration of a limited-scope copyright. I’d support a proposal that gave Disney unlimited duration ownership of Mickey Mouse and similar characters, both for economic and political reasons. The political reason is straightforward: if Disney got its own side deal, they would have no reason to keep up the push for indefinite extensions of copyright for books and other things I actually care about.

The economic reason is that Mickey Mouse is not a character in a black and white cartoon produced in the 1920s (and cribbed off someone else, IIRC), and his copyright protection does not (except incidentally) act to restrict people who want to reproduce or adapt Steamboat Willie today.

Mickey is, in the terminology of the industry, a franchise. Disney puts millions into producing and promoting Mickey every year, and reaps even more millions as a result. I think it’s plausible to claim that each individual franchise of this kind is a natural monopoly, and that we would be less well served with multiple Mickey suppliers, as opposed to competing franchises like Bugs Bunny (there’s an analogy here with the debate over sporting teams and leagues which I’m too lazy/busy to work out in full). So, I’d be happy to allow Disney, Warner Bros, DC, Marvel and so on to have permanent rights over their characters, as long as they kept on using them.

That’s the general idea, but implementation would obviously be problematic. For a start, if someone wanted one a permanent right I’d require an annual payment small enough not to restrict competition, but large enough to make it uneconomic to acquire rights over legions of characters “just in case”.

The more difficult question is what to do with characters derived either from the general culture or from specific literary works that we would want in the public domain. I was struck to find out, for example, that although Disney ripped Snow White from the Brothers Grimm, who in turn took it from the folk tradition (of course, without any notion of appropriating private property rights) they own the names of the Seven Dwarfs. Then there is the Bear Formerly Known as Winnie-ther-Pooh, a cartoon character bearing little resemblance to the original. I haven’t got a complete answer on this, but my general view is that protecting the franchise should not impinge on the standard creative uses allowed for work in the public domain.

9 thoughts on “Don't free Mickey

  1. What would you think of something like a 19th Century Squatter’s law, whereby people could use intellectual property that had been left ‘fallow’ for a certain number of years? As long as you use what you create, you retain your rights, but when you abandon your creation, it becomes free to be claimed….

  2. There is actually a precedent for ‘perpetual’ type copyright: the copyright in Peter Pan in the UK. The author of Peter Pan, J. M. Barrie bequeathed the copyright in the work to Great Ormond Street Hospital in 1929. In 1987, former Prime Minister Jim Callaghan successfully proposed an individual exception for the work from some of the effects of copyright law in the UK (s301 of the Copyright, Designs and Patents Act 1988).
    And of course Lawrence Lessig proposed that after the initial term of copyright required by Berne/TRIPS (life plus 50) you could have a system where you had to pay (even if it was just nominal) to keep hold of copyright.
    But there’s a lot of sense to the idea in my view. Particularly in light of the fact that there are at least some perpetual rights in characters like Mickey ANYWAY because they are all registered as trade marks (and trade marks last as long as you keep paying the fees…)

  3. “and that we would be less well served with multiple Mickey suppliers”

    A pretty big assumption.

    Look at a public domain character like Frankenstein. Was the public better served by its public domain status, or would have it been better if say Disney had infinite duration monopoly on it?

    But I think economic analysis (like yours) fail to see the main issue with current copyright: it’s just unenforceable in the internet age without huge costs elsewhere in the economy (and society). It also brings down people respect for the law. That’s pretty big.

    Every rules against the free market has its economic cost: before the internet the cost for copyright was small (mainly author-publisher contracts), now it’s suddenly huge (all the public).

    Econ 101?

  4. I certainly buy the political argument, and would support the proposal on those grounds alone. But I think the economic one is wrong. What the previous commenter said.

  5. Isn’t Steamboat Willie out of copyright in Australia already? 1928 + 50 years = 1978.

    Also, note that the US Constitution limits copyright to ‘limited times’ (Art. 1 s. 8), though in Eldred v. Ashcroft (2003) the Supreme Court ruled that Congress could keep extending the term indefinitely.

  6. I seem to recall that Mark Twain turned his name into a trademark, in order to get around the eventual expiration of copyright – and that this is why pirate editions of his books (ever since his own lifetime) have been attributed, not to “Mark Twain”, but to his real name, Samuel Clemens.

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