Mickey Mouse draws "get out of jail" card.

February 19, 2002 5:48 PM

Mickey Mouse draws "get out of jail" card. US Supremes agree to hear challenge to the 1998 "Sonny Bono" retroactive copyright extension.
posted by mlinksva (31 comments total)

That is outstanding!

Anybody have any inkling as to which why the supremes might lean on something like this?

I'd file an Amicus brief if I was a lawyer and knew how to do it - and if I wasn't basically a lazy SOB. Maybe I'll just donate some money to one of the usual suspects.
posted by willnot at 6:12 PM on February 19, 2002

[Off topic: listening to Sonny Bono and the Supremes in my head and not thanking mlinksva]
posted by MiguelCardoso at 6:13 PM on February 19, 2002

I for one prefer the longer years, IMO it encorages creativity and less repetiveness.
posted by bittennails at 6:16 PM on February 19, 2002

HTH you figure that, Bittennails? If Disney had lost ownership of Mickey when they were supposed to, they'd have to have worked their buns off to either establish new characters.

As long as Mickey continues to put major revenue into D's pockets, they've no real incentive to get really creative.
posted by five fresh fish at 6:21 PM on February 19, 2002

Just a thought: when an artist dies her heirs get the whole value of the copyright (for 70 years or whatever). But the rest of the estate is taxed, assuming that it's valuable enough. Why should this kind of intangible property be treated so differently from other kinds of property in inheritance law? Surely it wouldn't be so ridiculous for the government to get a share of copyright. (Ducks for cover)
posted by Gaz at 6:21 PM on February 19, 2002

Surely it wouldn't be so ridiculous for the government to get a share of copyright. (Ducks for cover)
You better duck, Crazy man.
posted by thirteen at 6:27 PM on February 19, 2002

You know its not just about the Mouse, its also about books that should have been in the public domain long ago which cannot be reprinted without permission, that is if you can find whoever holds the rights 90-95 years later. As the article points out, we're really losing out if we can't preserve our own culture.

Worse, there is no reason to assume that Disney lobby powers will wane and they will keep extending copyright for their own creations like the mouse, but making sure not to extend the protections too far because using the Brothers Grimm stories like Snow White for free is too sweet of a deal.
posted by skallas at 6:34 PM on February 19, 2002

Yes, it isn't just about Mickey, about which I couldn't care less anyway. Disney's continued ownership of copyright on the Mouse is symbolic of a much larger cultural travesty.

Even if the Supremes (sorry MiguelCardoso) do concur with the challenge (am I ever rooting), the copyright term will still be a ridiculous 75 years for corporate owners. The term specified in the constitution is 14 years. Put that original intent in your pipe and smoke it!
posted by mlinksva at 7:05 PM on February 19, 2002

Whether or not it is pragmatically right or wrong (I lean strongly towards wrong) it is fairly clearly unconstitutional. The Constitution specifies quite clearly that the grant is to be for a limited time and specifically to be granted only for the encouragement of innovation. The essentially infinite extensions that Mickey Mouse has been granted over the years clearly violate the 'limited time' definition, and the retroactive permissions clearly do not meet the test of encouragement of innovation, since the innovation has already occurred. So... if the court is even halfway sane, it'll rule in the people's favor.

Amusingly, one of the country's most respected con. law professors suggested at a conference I attended in October that if one were a strict constructionist (Antonin, you listening?) the constitution would also probably be construed to suggest that copyright cannot be transferred away from the original inventor. Too bad we'll never, ever see that happen- it would go a long way towards tilting the balance of power back towards creators and away from the conglomerates who control creators.

An additional point: the 'net is what makes this case possible. Even fifteen to twenty years ago [the last time the court saw such a case], publishing was a fairly expensive undertaking, and so proving that there was actually a net loss to the citizenry as a result of this was difficult. With some forms of publishing now virtually free [i.e., the net], it becomes much easier to show that the unlimited copyright actually tangibly damages intellectual property for real people. That's why this case got so far.
posted by louie at 7:09 PM on February 19, 2002

mlinksva: FWIW, the Constitution specifies only 'limited times' and not 14 years; 14 years is what the first Congress specified as the original term.
posted by louie at 7:13 PM on February 19, 2002

Ah, thanks for the correction. mlinksva dons dunce cap
posted by mlinksva at 7:22 PM on February 19, 2002

Louie...

I don't believe there is any constitutional issue here at all, and that, unfortunately, the court will side with the IP industry.

Why?

1) Congress has expanded the term limit many times in the past, without objection from the Supreme Court, and nothing about the CTEA is sufficiently different.
2) Wheaton v. Peters (I believe, 1830-something) basically says that users and creators have no common law rights beyond that granted by Congress
3) The court has been lenient with copyright definitions in the past from the Constitution. In Bobbs Merrill v. Strauss (1909(?)), it was argued that photographs should be disallowed from the 1908 Copyright expansion because they are not sufficiently "original". The Supreme Court sided with the constitutionality of Congress' expansion.

In sum, all copyright powers come from Congress. The Supreme Court has never overturned a copyright provision on constitutional grounds. The only mentions to copyright and the constitution which warn of Congress' limited power come from the Betamax case and the Rural Telephone case (which said that data could not be included in a copyright law because of free speech issues).

While I think that the Exclusive Right in the copyright clause of the constitution was intended to only mean "the exclusive right to sell" and that copryight law should be restricted to this one area, the supreme court precedent does not agree with me.

Sorry, but the Mouse will win this one, without even a debate.
posted by Kevs at 7:33 PM on February 19, 2002

Well FFF, my point is not only related to Disney, but to all copyright, if it is in public domain I can use it, right? So if I take something, like say a landscape photograph of Ansel Adams, use it as a background for a photoshopped piece of art, add a guy in the foreground, etc etc does it then become my original piece of art, that 100 years from now is credited to me because, the original photograph say burnt down in whatever estate or museum it lives in?
posted by bittennails at 7:37 PM on February 19, 2002

MetaFilter: Not Just About The Mouse
posted by MiguelCardoso at 7:42 PM on February 19, 2002

Damn, Miguel, I was under the impression I had RIGHTS on that.
posted by bittennails at 7:45 PM on February 19, 2002

Kevs: oh, of course... note the 'sane' disclaimer. That said, the fact that this was accepted at all suggests the Court at least wants to say something about copyright. I'd be more disappointed than usual if they chose to do that merely to reaffirm past precedents that are already fairly starkly clear in favor of the Disneys of the world, as you correctly point out.
posted by louie at 7:47 PM on February 19, 2002

BTW, Kevfs, the Times quotes one of the 'experts' as suggesting that this case does not in fact mimic previous cases in which the court has ruled, since it directly attacks Congressional authority and not just the way in which that authority was used. <shrug> no idea how useful or valid that distinction is, but it may suggest that the prior precedents aren't quite as useful as they might normally be.
posted by louie at 8:18 PM on February 19, 2002

I heard someone discussing this point out that if this law were to apply to something like "The Hunchback of Notre Dame" Disney would not have been able to make their version with altered ending without the permission of the Victor Hugo's estate. After all, the income of the artist is not at stake, just the revenues of the megacorps that have immense power to lobby for changes that benefit them but will privatize the public domain.
posted by chrismc at 8:31 PM on February 19, 2002

Anyone can make their own production of a Shakespeare play, thanks to the fact that Shakespeare's works are public domain. Just imagine if Shakespeare were "protected" by some insane retroactive copyright extension , and no one could mount a production without the permission of AOL-Time-Warner (or whoever had managed to get their hands on the rights). Or what if the works of Beethoven & Mozart were still under copyright? Would one still be able to go to the symphony and enjoy a live performance of their music?

Public domain serves a far greater purpose than most people realize. Congress's perpetual "extensions" of copyright are an attempt to eliminate the public domain.
posted by Potsy at 12:46 AM on February 20, 2002

I can't remember the author or title of it, but I read a science fiction story a few years back that dealt with a world in which copyrights were infinite, and anyone who could come up with a piece that was completely original (i.e. nothing that had ever been done in anything before it, not even a few notes played in sequence) was an instant celebrity -- because, of course, it was a near impossible feat. Anyone know it? The protagonist was a composer who'd become famous for producing a single song, and was working on another one to honor his (I think) wife.
posted by lia at 3:28 AM on February 20, 2002

Or what if the works of Beethoven & Mozart were still under copyright? Would one still be able to go to the symphony and enjoy a live performance of their music?

Although I agree with your general point, your example here is pretty bizarre. Copland, Shostakovich, Barber, etc. are all still under copyright but are played live almost as commonly as Beethoven and Mozart. Well, not quite as much as those two, but the difference is not because Beethoven and Mozart are in the public domain now!
posted by straight at 5:33 AM on February 20, 2002

OK, here are some better examples: West Side Story, Dave, Moon over Parador, Rosencrantz and Guildenstern Are Dead, and Double Star

Well, some of those examples are better than others, but still.
posted by djfiander at 6:17 AM on February 20, 2002

I for one prefer the longer years, IMO it encorages creativity and less repetiveness.

This is not necessarily true. Corporations like Disney borrow from the public domain (Snow White, Sleeping Beauty, Pocahontas) and effectively make it their own and copyright it. For all intensive purposes, those pieces are derivative works, are they not?

Disney aside, one hopes the court will realize that 90 years after the death of the creator is extreme. It isn't like they will need royalties from their creation so they can create another piece.
posted by pedantic at 6:34 AM on February 20, 2002

I believe the story Lia is referring to is Melancholy Elephants by Spider Robinson.
posted by bowline at 6:38 AM on February 20, 2002

Which is available on-line. (Make sure to click thru to get to the ending, which is broken up into 11 pages with ads.)
posted by smackfu at 6:52 AM on February 20, 2002

The authority of Congress is not under attack -- it is clear that the authority of Congress to protect intellectual property is for a "limited period." The court will be called to decide what the outer bounds of a "limited period" is.

It will be interesting how the court approaches this.
posted by MattD at 8:21 AM on February 20, 2002

In the end, Disney et al will continue to be Nazis using another portion of the law that is perpetual -- trademark law. Steamboat Willie the motion picture might eventually pass into the public domain, but do you really think they will let people use their characters without a fight? Character protection via trademark will become ever more important in light of Eldred, no matter what the Court ultimately decides. Of course, that won't help the poor downtrodden music industry...
posted by IPLawyer at 8:41 AM on February 20, 2002

I agree that copyrights need to convert to public domain much sooner (life plus 20 seems fair to me; to provide for a surviving spouse).

However, if a corporation is going to be perpetually liable for its actions (for example, insurance companies in California have been forced to provide information on slave insurance they may have provided; or paying reparations for business in pre-War Nazi Germany) then why shouldn't they be rewarded perpretually for their creations?

If we are going to treat corporations as a legal entity, then we need to make adjustments to account for the fact that corporations don't necessarily die like human legal entities.
posted by obfusciatrist at 8:48 AM on February 20, 2002

Sorry, but the Mouse will win this one, without even a debate.

It's been debated already at numerous initial and appellate levels and will by definition be debated once more before the U.S. Supremes, who will presumably issue a split decision that will embody its own internal debate. I believe Kevs is thinking of something along the lines of a summary judgement, inapplicable here for a raft of reasons.

And on the substantive point: Dramatic reversals of precedent can and do happen as conditions change. The Internet radically changed conditions. Moreover, since Lessig is arguing the case, you can reasonably assume a very solid case will be made; seemingly unprecedented arguments can win if persuasively and credibly made.
posted by joeclark at 8:59 AM on February 20, 2002

Another copy of Melancholy Elephants is here. (one page, no ads.)
posted by sonofsamiam at 9:14 AM on February 20, 2002

There actually is a larger issue involved here, which is changing the law after the fact. According to Article I, Section 10 of the Constitution, "no State shall pass any ex post facto Law"; A similar provision that applies to Congress is found in Section 9 of the same article. With one ruling in 1798, the Supreme Court succeeded in muddling the issue of ex post facto laws by holding that the prohibition of retroactive laws applies only to criminal, not civil, laws. Here is a good article about this subject: THE CASE AGAINST CIVIL EX POST FACTO LAWS.
posted by Mack Twain at 11:53 AM on February 20, 2002