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  • Just Another Mickey Mouse Argument on Copyright Law

    Posted by Shannon Love on November 30th, 2012 (All posts by )

     Virginia Postrel  makes some good arguments against the current mess of copyright law, but both she and most others neglect what I believe to be a primary driver for major corporations seeking ever broader copyright protection: franchises.

    Until we address the need of corporations to protect franchise in which they are still creating new works, we won’t make any progress on copyright law.

    In mass entertainment, a franchise is a connected series or group of works sharing common characters, plots etc produced over relatively long span of time. Franchise characters or settings become recognizable brands in their own right. Recurrent characters like Sherlock Holmes became franchises long before the term was coined. In the modern era, Star Wars, Star Trek and various Disney properties are examples of major franchises. Star Wars and Star Trek have produced a vast number of secondary works from novels to games, not to mention the toys, T-shirts and, according to some, religions. Disney has been in the franchise business since the end of WWII. Many credit Walt Disney for creating the artistic franchise business model in the first place.

    Traditional copyright law predated the evolution of the franchise and instead assumed that copyright protected discrete works e.g. a single short story, novel, song etc made by a single artist. Traditional copyright law didn’t consider that the ownership of the copyright might be an immortal collective in form of a corporation or a family, nor that collective owners would keep producing new material based on the original. Under traditional copyright law, once a story’s copyright expired, so did all the characters, settings, plots, images etc that made up the story. That’s why anyone can remake the “A Christmas Carol” and sell it under that name, but they can’t make and sell their own version of Star Wars.

    What makes sense for a one shot work becomes a legal, economic and moral nightmare for a franchise. The canonical example of this problem would be Mickey Mouse. Good ‘ole Mickey first appeared in 1928 as a character in “Steam Boat Willy“.  According to traditional copyright law, the character of Mickey Mouse himself, and not just the discrete short “Steam Boat Willy” would have become public domain no later than 1984. After that, anyone could make and sell knock off products of Mickey Mouse as he appeared at any stage of his evolution right up to the present day!

    Why does it make economic or moral sense to allow non-creative vultures to swoop in and make money off the Mickey Mouse character and brand, even while the collective owner, the Disney company, continues to generate new work? What is the functional, practical, legal and moral differences between violating the copyright of a solitary artists for a new work and doing so for a collective that is also generating new work based on old works? In either case, new creation is stymied.

    It’s not just Disney and other creators that could get ripped off. Disney has used their copyright to protect the brand integrity of it’s characters so that customers, mostly parents buying for children, pretty much know what they are getting a child safe product when they buy a Disney product. If Mickey Mouse and all the other characters enter the public domain, customer’s picking up a “Mickey Mouse” movie might end up with anything, even porn.

    Reverting to traditional copyright makes moral and practical sense in the context of a small one shot work like a Robert Frost’s poem, because the copyright is supposed to reward the creation of new works. Frost was never going to spend the next thirty years expounding upon “Stopping by Woods on a Snowy Evening,” so nobody is harmed when work slips into the public domain.

    Walt Disney, his heirs and the Disney company itself, however, have spent the last 84 years cranking out new Mickey Mouse stories and products of all kinds. Mickey Mouse is one of the most recognizable characters and a brand himself of great value owing entirely to the vast body work that Disney generated over the decades. Since the retention of the copyright by Disney has led to the generation of new works, the expanded modern copyright accomplishes the primary intent of traditional copyright law in the isolated case of franchises.

    No doubt some of the impetus for expansive and functionally permanent copyright is driven by the desire of many to cash in on works bought cheap in mass 50 years ago, like classic Robert Johnson blues, which have suddenly become valuable in the internet age. But the need to protect franchises is still a primary driver and one that few seem to acknowledge or talk about in the ongoing debate. Most, like Postrel, still base their reasoning on one shot works, like Frost’s poem, and don’t discuss franchises at all. As such, the debate on copyright devolves into two sides talking past each other.

    If we created a new form of property for franchised art works, the companies would lose their financial motive for pushing expansive copyrights and would stop putting political pressure on the government to expand copyright. We could safely return to the older system of copyrights for one shot works. More classical and no longer generative works would pass into the public domain while old works that still generated new creation in a franchise would still provide financial reward and control for their creators. Everybody wins.

    We have to acknowledge that one shot works and franchises are disparate artistic, economic and legal entities that require their own customized property laws. Until we do that, we can forget about any meaningful and sane copyright law reform.

    [Note: There are other neglected issues in the current copyright debate like the "Middle-Aged One Hit Wonder" but I'll cover those later. Let's restrict the current discussion to the issue of franchise copyright.]

     

     

    17 Responses to “Just Another Mickey Mouse Argument on Copyright Law”

    1. Robert Schwartz Says:

      Eh. Screw em. Disney and the rest of the media are our enemies. I like Virginia’s idea. Go back to the Copyright Act of 1790.

    2. ed in texas Says:

      Are you arguing that allowing franchise characters to covered by copyright is what made Disney profitable? Possibly true.
      Considering the behemoth that Disney has become (Disney, Touchstone, CapCities, etc), would cutting down their advantage be a bad thing?
      Possibly not.
      The entertainment giants need to be moved into a smaller business model, much as the finacial giants do. In both cases, growth to their current size was largely a move to eliminate competion and increase profitability. The desirable aspects of the product have become irrelevant to business growth.
      I’m going to coin a phrase here. Let’s call it ‘social bonsai’. Trim the roots and see how the company grows…

    3. Shannon Love Says:

      Robert Schwartz,

      Disney and the rest of the media are our enemies

      I don’t define anyone who is actively creating new products that people voluntarily buy, “enemies”. I don’t buy into the entire, if they’re big, their automatically evil BS. Getting big just means you made a lot of people better off.

      Besides, I think you missed the point. I argue that the main reason that Disney et al are fighting to extend copyright for all works is that they wish to protect their franchises. Protect their franchises and the big companies loose their incentive to fight for expansive copyright. That, as a practical matter, will significantly reduce the political pressure for expansive copyright and allow us to role it back.

      Why set up a long slogging trench warfare of a fight when you don’t have to? Fair solutions are always the easiest to implement.

    4. Shannon Love Says:

      Ed in Texas,

      Are you arguing that allowing franchise characters to covered by copyright is what made Disney profitable?

      No, under traditional and current copyright law, the characters themselves are not copyrighted. Once a copyright expires, anyone can use the characters and their images, even modern manifestations of them. In other words, if Disney changed Mickey Mouse again today, then tomorrow a chinese knock off company could start cranking out Mickey Mouse action figures of that design and sell them as “Mickey Mouse”.

      Disney grew into a giant under traditional copyright long before the expansion of copyright in that started back in the 1980s. The expansion of copyright has just served to keep them creating.

      Considering the behemoth that Disney has become (Disney, Touchstone, CapCities, etc), would cutting down their advantage be a bad thing?

      It would be a bad thing if we’re doing the leftwing thing of engineering desired outcomes by prejudicing the law to create a specific outcome against a specific individual or group. Disney has grown large because it’s good at what it does and people buy their products. What right does anyone else have to say that suddenly their property isn’t theirs anymore?

      As a practical matter, Disney isn’t going down without a fight. Probably 80% of Disney’s assets are intellectual property of one form or another. They will fight brutally hard in the political arena to protect those assets as they have for the last 30 years. Let’s not forget, they are currently winning that fight and that shows no signs of changing. They have basic morality on their side in that our intuitive sense is that people who create something, even an informational product, have the right to control it and profit from it. You’ve positioned yourself arguing that against that fundamental moral precept and that is a politically losing strategy even before Disney et al brings all their political donations, lost tax revenue and job loss arguments into the picture.

      The economic incentive to control old, non generative and non-franchise works is far, far lower than that of franchised work. Giving people property rights in their ongoing creation is not only moral but politically practical and will protect the public access to old, non-generative works.

    5. Robert Schwartz Says:

      “I don’t define anyone who is actively creating new products that people voluntarily buy, “enemies”.”

      I define the so-called Mainstream Media as our enemy. They consistently give the Democrat party a 5 point advantage in national elections. That they make a profit is no excuse for their abuse of power.

      Go to this site: http://fairmodel.econ.yale.edu/vote2012/index2.htm

      Obama took 52% of the vote when the economic model predicted 49%. In 2004, the economic model predicted a GWB win of 57%, but he only got 52%. Evan Thomas of Newsweek famously boasted that the MSM could move 15% of the vote. They can’t do that, but 5% is often sufficient.

      After Rick Santelli launched the Tea Party with his famous screed, the general manager of NBC (Jeff Zucker, who is moving on to run CNN) and the CEO of Parent Company GE called the staff of CNBC in for a meeting and told them to lay off of Hussein.

      The MSM will use the fiscal cliff negotiations a Republican bashing tool of unprecedented mendacity and vitriol. They are the enemy of Republicans, conservatives, libertarians, patriotic Americans of all persuasions.

      And curiously enough, they are same companies that you want to do something for. Exhibit A is Disney, which owns ABC.

      You want to help them. I want to shove the urverdammten mouse into the portion of their anatomy where the sun don’t shine.

      If they are not our enemy, who is? They and their and their legislative agenda must be opposed.

      So I say about copyright reform: screw ‘em.

    6. grey eagle Says:

      I’ve often wondered why there are no new science fiction books about travel to the planets, to nearby stars, or using warp drive to reach the end of the universe.

      Now I understand that such a book violates the Star Wars copyright which explains why new books on space travel are not published. It probably explains why NASA goes nowhere because just planning a mission violates somebody’s copyright.

      Defending creativity is the best way to kill it.

    7. Boobah Says:

      Look. Brands are valuable. I get that. And it’s true that you can make money by slapping a familiar element or two onto an otherwise new story and billing it as something else set in a well-known universe as a marketing tool, instead of forcing the new work to stand on its own merits; The Phantom Menace would never have gotten a sequel (much less two) without dragging the the Star Wars name through the mud.

      But the flip side is that if you come up with a story like Wicked where a good portion of the point is the compare-and-contrast with an earlier tale you’re forced to either disguise the relationship between the two (which can ruin the whole undertaking) or you can’t make any money off it.

      Furthermore, just because Disney is making money off a franchise (however defined) doesn’t mean that that’s the best use of that franchise; you can’t justify a monopoly on the basis that people buy its product after the government makes the most comparable goods illegal.

      The really short summary of your position comes out like this: Disney made its money on a government handout, and it’d be mean to take that away from them, and they’ll use their political power to fight to keep that handout anyway, but just maybe if we slice copyright up the right way we can sidestep some of that. I don’t buy it.

    8. Jonathan Says:

      I think the problem with Disney et al is that they bribed legislators to change the laws to extend valuable copyrights post facto, essentially a taking. Whatever the scope of copyright, and there are reasonable arguments for various alternative legal regimes, the law should not be changed frequently or casually, and certainly not for the benefit of specific constituencies as it was in recent years. In this regard copyright law is like real estate law: once a workable system is in place it is usually better to leave it alone than to try to fine tune it, because the possibility of change creates uncertainty whose costs usually swamp any benefits from tinkering.

      One area where reform might be justified is in making it less expensive for copyright holders to enforce their rights to intellectual property whose value is less than the anticipated cost of a federal lawsuit.

    9. Shannon Love Says:

      Robert Schwartz,

      Basing an entire body of law on the politics of the moment is suicidal. What makes the northern European institution of Common Law and it’s formal derivations such unique and powerful tools is that they evolve organically over long periods of time and therefore transcend the fads and fallacies of any particular generation. Basing copyright law on screwing over the political opponent du jour is a recipe for the destruction of the Law itself.

      Also, while everyone talks about big corporations benefiting, historically it is the smaller companies and individuals who benefit most from strong property rights. Big companies have the resources to defend themselves or manipulate the political system while individuals do not. The classic example being the open range of the late 1800s and the range wars that marked its closure. While the range was open, giant cattle barons held all the advantage because with no delineation of the land into private property, the ones with the most cattle and most cowboys muscled out those with less. The same thing occurred with software in the 1990s.

    10. Shannon Love Says:

      Jonathan,

      Whatever the scope of copyright, and there are reasonable arguments for various alternative legal regimes, the law should not be changed frequently or casually, and certainly not for the benefit of specific constituencies as it was in recent years.

      I agree but this problem arose because he original copyright system was archaic and created in a much different time. As such, it did not address the issue of franchises.

      Remember, the original copyright law was interpreted to mean that the characters e.g. Mickey Mouse, Sherlock Holmes, Luke Skywalker etc became public domain when the copyright on the original story expired. We’re not talking about a situation is which Disney is trying fanatically to defend its rights to the 80 year old “Steamboat Willy”. That old tune has only historical interest. Disney is trying to protect the work it did on Mickey Mouse yesterday.

      In other words, the copyright law anchored all rights to current works on the oldest copyright. The only means to protect current work was to increase the duration of the copyright of old works indefinitely.

      The alternative is to grant an extended copyright on the characters and settings while letting people copy and sell the original work. The actual Steamboat Willy would be become public domain and anyone could copy it for any reason, but no one could create Mickey Mouse knockoff products of any kind.

    11. Shannon Love Says:

      Booban,

      Disney made its money on a government handout,

      Well, then I guess I do as well since I write software which is governed by copyright law. If getting a copyright is a government handout then so is the deed to land or other physical property. After all what is deed to land but a “monopoly” on the use of the land?

      Your argument is ahistorical because Disney grew into a large company with one of the world’s most recognized brands under the traditional copyright law. They did so because people chose to buy their products.

      If anything, the “government handout” comes when copyright ends because then then those who contributed nothing get to swoop in and start making money off of very valuable brands/characters even though they contributed nothing to building that brand. People who get wealth from no work or creation are getting the handout, not the creator. It’s as if the parable of the little red hen ends with everyone who didn’t plow, sow, reap, mill and bake, eating the bread.

      Frankly, your argument sounds like Elizabeth Warren’s, “you didn’t build that” argument i.e. the government protects your property rights, physical security etc, then that gives the state the right to dispose of the fruits of your labor as the state sees fit. In the view of people like Warren, if the government doesn’t take enough away from you, it’s subsidizing you.

      I disagree. I think the state exist solely to protect my rights and far from the state’s protection imposing an obligation on me, the state has to justify its own existence by how well it protects my rights. The state protecting my rights does not constitute a handout.

      I think that as a moral matter, creation confers inherent absolute rights over the use of the creation. I think it unarguable that anyone who creates get to chose how or if they seek benefit from that creation and no one else has the least right to it.

      It is only a matter of practicality that the rights of creators must be non-absolute and finite.

    12. Mrs. Davis Says:

      If Mickey Mouse and all the other characters enter the public domain, customer’s picking up a “Mickey Mouse” movie might end up with anything, even porn.

      Sort of like The Realist did in 1967?

      The only means to protect current work was to increase the duration of the copyright of old works indefinitely.

      This makes no sense to me. I can see no reason why “Steamboat Willy” cannot be public domain. The Mickey Mouse character can be trademarked and protected and new works can get limited protection before going into the public domain. Time to liberate “Song of the South”.

    13. tomw Says:

      I have one question.

      Why do copyright laws extend as long as they do while pharmaceutical products have such a short protection life in comparison?
      I always thought that antibiotics were a lot more valuable than Mickey Mouse(tm).
      In the case of drugs, the makers are derided for making small changes, changing the name, and re-patenting the product. While Disney & Co does the same thing for Mickey & crew, and are kept protected…
      What do you value more? Your health or your entertainment?

      If anyone is taking note, there are very few new antibiotics being developed nowadays. The cost is very high, and the product life limited.

      So, all you who agree Disney deserves such protection, can someone explain why drugs don’t get the same thing?

      tom

    14. Jonathan Says:

      Very good question.

    15. Robert Schwartz Says:

      “Basing an entire body of law on the politics of the moment is suicidal.”

      1. The culture war (i.e. the campaign by liberal elites to destroy the culture of the 18th century Enlightenment embodied in the founding documents and inflict “multiculturalism” on Americans) is not a matter of the moment. It has been going on for a couple of generations now, and we are losing. The mainstream media is a conscious co-conspirator in this war. Screw ‘em.

      2. Your argument is, in form, like all of the arguments against imprisoning terrorists at Gitmo, water-boarding them, and using drones to kill them. “We cannot use those tactics because it would reduce us to their level”. It is an argument that ultimately fails because it assumes that men can live by their own codes without regard to the consequences.

      Immanuel Kant said that no rational, moral, man should ever speak less than the entire truth under any circumstance. Benjamin Constant replied by asking if an armed and angry man comes to your door and asks for your neighbor’s whereabouts because he wants to kill him, would it be proper to deceive the angry man? Kant replied no. Constant said then you will be an accessory to murder.

      3. There is no law in war because law and war are entirely separate realms subject to completely non-overlapping criteria. The culture war is not a shooting war. But, it is a war and we must fight it as such.

      “What makes the northern European institution of Common Law and it’s formal derivations such unique and powerful tools is that they evolve organically over long periods of time and therefore transcend the fads and fallacies of any particular generation. Basing copyright law on screwing over the political opponent du jour is a recipe for the destruction of the Law itself.”

      1. There is no such thing as a “northern European institution of Common Law”. What lawyers and jurists in the Anglosphere call the Common Law is the law announced by the judges of the Common Law Courts of England in the course of their rulings over the centuries since the Common Law courts were established by Henry II. This body of law is distinct from what lawyers and jurists on the mainland of Europe called the Jus Commune.

      The Jus Commune was based on the Corpus Juris Civilis, an encyclopedic restatement of the Roman civil law written during the reign of the Roman Emperor Justinian I and promulgated by him between 529 C.E. and 534 C.E. It was “rediscovered” by lawyers in Italy in the 11th century, and taught by them to students from all over Europe at the first Universities in Europe, such as the first of all, Bologna, founded in 1087 to teach the Corpus Juris.

      The Jus Commune was the law all over Europe, except England, until the modern era when it was replaced by national codes, such as the French Code Civil of 1804 and the German BGB of 1900. The Jus Commune was the law of Scotland before the union of 1708 and remained so afterwards. Many UK statutes contain exceptions and disclaimers as to their application in Scotland. It is also still good law in South Africa.

      In England, continental law had very limited application, principally in marital matters where the jurisdiction lay with ecclesiastical courts and in the development of the law merchant.

      2. Copyright was never part of the Common Law of England. It was created in England by statute in the 18th century (Statute of Anne 1710). The United States Constitution, which is not part of Common Law, granted the power to enact copyright laws to Congress, but limited that power in significant ways.

      3. The existing US copyright law is the creature of the corrupt and stupid machinations of the Capitol District not the emanations of the “brooding omnipresence in the sky”. Its purpose is to create and reenforce monopolies on behalf of regime stalwarts like the MSM, not to succor the little guy.

      “The classic example being the open range of the late 1800s and the range wars that marked its closure. While the range was open, giant cattle barons held all the advantage because with no delineation of the land into private property, the ones with the most cattle and most cowboys muscled out those with less.”

      There was never a time when any part of the United States was not subject to the rule of law. Ranchers were, and still are, grazing their cattle on land owned by the Federal Government, which claimed ownership as the sovereign successor to the UK, France, Spain, Mexico, and Russia. There might have been poor enforcement, but there was no lack of law.

    16. Jack Diederich Says:

      1) Trademark, as pointed out up-thread.
      2) Brand. Would people pay money as readily to see a Harry Potter themed film that didn’t have JK Rowling’s name on it as one that did?
      3) I don’t get your moral argument about the ownership of franchises. It seems more like a practical argument that franchises will stop if they aren’t proctected. Have you heard of “mockbusters”? They’re B-movies that crib the premise of a Hollywood movie but come out before the real deal. They serve secondary markets [straight-to-Netflix is the new straight-to-VHS] and show no signs of slowing down the big studios. Sometimes they are quite entertaining: see “Abraham Lincoln vs Zombies” [B-movie] against “Abraham Lincoln: Zombie Hunter” [Hollywood].

    17. Jack Diederich Says:

      woops, “Abraham Lincoln: Vampire Hunter” (not zombies like the mockbuster)