A short, short time ago, in a government office far from public accountability…
It is a period of contentious fights over monopoly power. Rebellious anti-monopolists have started to see their first victories against the evil Galactic Entertainment Empire. Now, anti-monopolist observers have stumbled on the Empire’s ultimate weapon, the capture of the Copyright Office, an unheralded bureaucracy with enough power to bring competition to its knees…
The United States Copyright Office recently announced that Disney’s Deputy General Counsel, Suzanne Wilson, would become its new General Counsel on January 31, 2022. Wilson has worked for corporate interests in intellectual property law for two decades, first as a partner at Arnold and Porter representing entertainment companies in intellectual property cases, and then at Disney.
If there is any one company that should obviously be kept from influencing copyright, it’s Disney. This is not just because it seems to be perpetually entangled in intellectual property disputes. Disney has a decades-long history of aggressively lobbying to keep its exclusive rights to properties like Mickey Mouse and the Disney princesses from expiring. And when it comes to their most lucrative properties, Disney not only refuses to let it go, they weaponize their copyrights in abusive ways.
The core thesis of copyright law, and all intellectual property, is the non-controversial idea that creators have a right to profit off of their ideas and works, at least for a certain amount of time. After all, if someone can write a book only to have another person copy it and commercialize it faster, then there could be enough risk to deter an author from writing at all. Eventually, though, cultural works are supposed to enter the public domain so that all of humanity, not just those who can afford to pay, get to both enjoy and iterate upon the works that came before.
Stories and art are inherently iterative; new work builds on the existing cultural collection. Consider all of the ways Sherlock Holmes has been depicted around the world — from scarf-toting serial text-messenger, to foppish friend of a Japanese attorney, to…a mouse, by Disney itself. None of that would be possible if Holmes was still a protected piece of intellectual property, instead of a figure in the public domain. The world would be denied new pieces of art, new contexts for old ideas, and new ideas that spring themselves from that recontextualization. Plus, the pieces’ creators wouldn’t be able to support themselves. This is why copyright should balance the ability of the author to profit with letting other people build on their ideas to take the arts in new directions.
But now, through a combination of term extensions and more copyrights belonging to corporations than to individual authors, IP protections are themselves acting as a deterrent. When the original Mickey Mouse copyright is not set to expire until nearly 95 years after its debut, then the public interest in fostering creativity and discursive artwork has become yet another sacrifice at the altar of corporate profit. In its current state, copyright law exists to punish the little guy — the worker, the person with creative ideas — and bolster already eye-popping corporate profits.
The entire legal history of copyrights after the turn of the 20th century has mostly been driven by Disney’s machinations. Under the existing law, defined by the Copyright Act of 1909, Disney got a 28 year term, renewable for another 28, giving it the copyright on Mickey Mouse from his first cartoon title, “Steamboat Willie” until 1984. As that date loomed, Disney successfully lobbied Congress to substantially extend the lengths of copyrights with the Copyright Act of 1976. Under that act, Disney’s copyright got another 20 years. The next time Mickey was heading towards entering the public domain (due to happen in 2004), Disney was back to work pushing for legislation, ultimately resulting in the Copyright Term Extension Act of 1998. Along with congressional allies like Sonny Bono, Disney tried to make copyright terms infinite, but ended the infinity war when Congress, perhaps not feeling existential enough to work through the legal ramifications of eternal property rights, only gave Disney another twenty years. The resulting legislation would earn the moniker of The Mickey Mouse Protection Act.
Meanwhile, Disney has played it fast and loose with copyrights belonging to rival firms, even as it jealously guards its own. Until just a couple of weeks ago, Disney was involved in litigation over rights to the film Predator, via its now-subsidiary 20th Century Studios. They are also being sued over a trailer for Frozen and the film Inside Out by independent animators who allege that Disney pilfered their work. The Inside Out case is especially interesting: a student film by the same name— which also featured a main character controlled by the whims of five mercurial internal drives— was shown at Sheridan College in Ontario, the alma mater of several people who worked on the Pixar/Disney film. And Disney is fighting against visual effects firm Rearden’s claims that Disney films illegally violated their copyrighted film animation style.
Then there’s the matter of how Disney treats the actual artists who come up with the characters from which it profits. Right now, the firm is still engaged in numerous court cases with former Marvel comics writers and their estates over rights to a number of popular characters, including Spider-Man, Thor, and Iron Man. Those cases all hinge on a legal definition. Marvel (and therefore Disney) contend that the characters’ creators have no claim to the copyrights because all of the comics and characters in question were works “made for hire.” Essentially, the cases turn on whether the writers were artists who then sold their work to a publisher (in which case they have a claim to recapture the rights to characters) or whether they were Marvel Comics employees producing works as part of a larger effort. It boils down to whether they were freelancers or paid writing staff who produced company materials.
Legal minutia aside, the results of these lawsuits could have severe consequences. If Disney wins and the courts hold that all of these characters are works for hire, then essentially any artist who creates something for a company will no longer have any claim to their creation unless they negotiate hard for the copyright in their initial contract (which Disney will surely protest). If you made something up while working for Disney, then Disney is its legal creator, not you. This will disempower artists and creators who will have no credible claim to being able to take their work elsewhere.
These cases are worth billions of dollars and will likely set the tone of copyright rulings for the foreseeable future. Since the Copyright Office provides expert recommendations and advice to Congress, the executive branch, and the courts, Disney’s recent employees may soon be advising government officials about copyright policy.
Making the situation worse, Disney is notoriously litigious, rarely settling for just the bare necessities of protecting their intellectual property. Disney has sued multiple daycare centers over the use of images of copyrighted characters. They also filed suit against an underfunded elementary school because, during a PTA fundraiser, the parents entertained their children by playing The Lion King. National Geographic, which is owned by Disney, also took down other people’s footage of a NASA launch (including footage produced by NASA) by filing copyright strikes against numerous channels on YouTube. And, after encouraging Twitter users to celebrate Star Wars Day (May 4) by encouraging fans to tweet with the hashtag #maythe4thbewithyou, Disney+ then claimed that by doing so, users had consented to their terms of service. There are many, many more instances of abusive behavior, but those are a few of the highlights.
Given Disney’s history of trying to influence deliberations around copyright terms, corporate tampering with public IP protection feels just around the riverbend. After all, in an age of corporate interests capturing arms of the government, that’s what friends are for. Even worse, there is precedent for the Copyright Office blatantly making things up to help media giants: As Public Knowledge explains, “In a 2016 report, the Copyright Office declared that U.S. copyright law had an unwritten right that gave copyright holders the power to dictate how, when, and under what circumstances their works were ‘made available’–or even offered–to consumers.”
Read that a second time – “unwritten” means that despite the absence of statutory text, the office under President Obama conveyed such a right to incumbent IP holders. Creating rights for IP holders with tenuous legal justification helps those with the most copyrights (like Disney) by giving them peremptory control over all public exposure of their works.
This move to install a former Disney lawyer in the executive branch is also made more suspicious because of the longstanding capture of the Copyright Office. The current Register of Copyrights (the office’s director) is Time Warner’s former lawyer. As Techdirt’s Mike Masnick discussed, a Time Warner lawyer running the office and hiring a Disney lawyer for a powerful position seems like the embodiment of corporate capture.
But right now, for the first time in forever, Mickey is inching closer to the public domain, with Disney’s copyright of “Steamboat Willie” set to expire at the start of 2024. But with Wilson’s recent hire, the entertainment titan may be prepared for another lobbying campaign to hold on to their quintessential character, and through it, all of the rest of its properties. Only time will tell if Disney is gearing up to go the distance in entrenching its monopolistic grasp on its characters. It should be clear that Disney doesn’t care about those poor unfortunate souls who actually write, direct, act, and animate for its features, much less other artists inspired by their productions. The suits at the top of the company just look at the products of their artists’ labors and say “mine, mine, mine.”
Even if there is no broader agenda going on, Wilson’s hiring still continues a harmful trend of putting laws established for the public interest in the hands of people who have made careers out of serving specific private interests. Spending two decades fighting for longer, stricter, more punitive copyright standards is a surefire sign that Wilson is in favor of strong copyright protection. Continuing the status quo of favored Hollywood interests controlling the levers of power in the Copyright Office will allow corporations to extend their monopoly on copyrights. When it comes to Disney and copyright law, there’s just no telling how far they’ll go.
PHOTO CREDIT: “Disney” by Aziem Hassan is licensed under CC BY-NC-SA 2.0
Edit: The Phrasing of the timeline around copyright legislation has been edited for clarity. A note on the Copyright Act of 1909 was added for context.