Unlikely Copyright Champions

Mickey Mouse and Mark Twain

The creation of laws is driven, in theory, by real people facing real problems. What makes copyright law both interesting and intriguing is that the “real people” driving the evolution of these laws are often “creative” people. They’re folks whose problems tend to be phrased with sharp wit and keen insights.

Possibly the best examples of “artists with a copyright mission” are Mark Twain (aka Samuel Clemens) and Mickey Mouse (aka Walt Disney and team), both of whom were persistently vocal about updating the prevailing copyright laws of their times.

Mark Twain / Samuel Clemens

Clemens seems to have been battling the confusion and complexity of copyright law with the publication of his earliest stories. He is, after all, the one who penned this often-quoted, one-line assessment of copyright laws:

Only one thing is impossible for God: To find any sense in any copyright law on the planet.

In later life, a successful and world-wise Clemens would struggle to extend the terms of copyright protection in the US. His initial problems, however, were simply with the complexity of numerous national laws. They overlapped and combated each other in an ever-growing world of English-speakers that were only separated by laws and not natural language barriers.

One of the copyright windmills he tilted at was the case of the staggered release of the Adventures of Tom Sawyer in 1876. The novel was released in England in June of that year but not scheduled for US release until late fall, nearly five months later. Seeing this gap an enterprising publisher in Canada took advantage of local law to create copies and ship them down to the US well before official release. This made sense to a large hungry audience—they were all English-speakers after all!—but to Clemens this was no less than piracy.

My books sell at $3.50 a copy, their Canadian counterfeit at 25 & 50 cents. If I could seize all the Canadian counterfeits I could no more use them to my advantage than the Government could use bogus notes to its advantage. The only desirable & useful thing, in both cases, is the utter suppression of the counterfeits. The government treats its counterfeiters as criminals, but mine as erring gentlemen. What I want is that mine shall be treated as criminals too.

This missing income was especially annoying to Clemens as he grew older and began to suffer investment losses.

This problem—what we might call the challenge of “protecting local rights in an increasingly globalized English-speaking world”—is even more acute today than it was in Clemens’ day. While Netflix, as an example, is rapidly pursuing international expansion, you are still likely to get this sort of message when you try to log into the US-based service from a non-US locale, and largely because of copyright reasons:

Netflix

Clemens also lobbied for extending the duration of copyright protection. The Constitution’s original grant of protection was for 14 years, with a single 14-year renewal possible after that. The Copyright Act of 1831 extended this to 28 years of initial grant with the same 14-year renewal, but Clemens argued in his later years for a term of “perpetuity”.

He didn’t get his request, but another revision in 1909 moved the term to 28 years for both initial copyright and renewals—over half a century of protection. And then The Mouse came on the scene, and things really began to change.

Mickey Mouse / Walt Disney

In 1928, Mickey Mouse made his first appearance in “Steamboat Willie”, an animated short by the up-and-coming Walt Disney. Under the prevailing law of the land, Mickey could only be protected for 56 years—he could be borrowed or re-imagined or slandered or republished by anyone when the year 1984 rolled around. You can imagine how disconcerting this might be to a forward-thinking company whose chief character is now the icon of a $49 Billion global entertainment empire with over 180,000 employees.

As these stakes got higher, pressure on the US Congress grew. Great IP Bloggers like Tom W Bell have penned informative articles (like this one, source of the image below) that articulate what has come to be known as “the Mickey Mouse curve.”

In short, lobbying in congress has driven copyright reform in a way that continues to protect “Steamboat Willie” and other works. Each round of reform extends the terms of both initial copyright and renewals, covering Mickey’s creative rights and “pushing out” the time in the future when he might no longer be protected.

But under the current laws there will come a time—about 2023 or so—when either the laws will have to be expanded again, or Mickey will be left defenseless against imitators and forgers.

Copyright Duration and the Mickey Mouse Curve

Lawmakers in the US are currently reviewing new legislation that may extend these terms, and may make other changes to realign IP rights with an increasingly digital—and therefore porous—world.

Still, is it a bad thing if Mickey loses his protection? It may be to Walt Disney Company, but the framers of the Constitution really only sought protections for “a limited time.” Perhaps they knew that, eventually, everything must be copied.

Among the many things Samuel Clemens said (and it helps to remember here that he was a man who could argue any side of any argument with an amazing persuasiveness) is this bit about plagiarism, in a letter to his friend Helen Keller in 1903:

As if there was much of anything in any human utterance, oral or written, except plagiarism! The kernel, the soul—let us go further and say the substance, the bulk, the actual and valuable material of all human utterances—is plagiarism. (Italics inserted)

It sounds like Clemens was perpetually of two minds: agreeing on the one hand with Ecclesiastes in saying “there is nothing new under the sun,” but still wanting to protect his intellectual property so his children’s children could enjoy the fruits of his unique creativity.

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Michael Thelander has an extensive background in cybersecurity product marketing and management. He’s also a passionate worshipper of Jesus.

5 COMMENTS

  1. My objection is:
    A) We have more than enough hymnals for everyone in church.
    B) We produce a weekly worship folder so that we do not force people to thumb through the hymns and liturgies.
    C) We use the hymnals only when we cannot obtain copyright permission.
    D) Thus, the “Mark Twain” concerns (creativity protection/income) are met through the initial purchase; we are not seeking to avoid royalties.
    E) Someone outside of the initial creative person is making money (royalty) for something which “Mark Twain” did not do (the purchase price of a hymnal should cover any “creativity” in its production and should be a “fair license” for reproduction).

    As to the points raised in the article:

    I do not feel that a copyright should exist beyond the life of the creator (human being). My family will not be able to derive income from my current “day job,” after I terminate my employment, let alone die. Corporate intellectual property is another matter. If someone creates as an employee, then a fair, limited royalty (not 100%) is just and should remain with the employee until dearth or the end of the copyright.

  2. Thanks for your reply!

    You raise interesting points on the “life of a copyright.” The Constitution granted congress the right to protect, “for limited Times”, the works, writings and discoveries of authors and inventors. But because it’s hard to determine what they intended for “limited times”, people like Samuel Clemens had a reason to ask for longer terms. We suspect they’ll continue to do so.

    It’s a bit of genius, really, that the Constitution can be stretched and tested as much as it has been over the years, and still serve what today is a vastly different world.

  3. I don’t see why copyright should be stretched endlessly. Especially in the case of Disney, does it really make sense that a company can keep on milking an old idea like Mickey? In any other business the product life cycles are much shorter. The equipment used to show those first Mickey movies have been of the market for many decades now! As each industry needs to innovate, why not the creative business – after all, that’s what it means to be creative.

    A nice example is software. The copyright of almost every software product survives it’s product life span and thus its commercial value.

    The stretching has run out of hand.

  4. Great comparison, Peter, and interesting to consider. Where software has great utility–and therefore can become outdated as new innovations eclipse old ideas of usefulness–art is supposedly “timeless.” If terms of protection for works of art began to compress rather than expand, would we see as many versions and variations and updates (innovations) as we see in software? And would it be a a good thing? I think I could be convinced either way.

  5. Hi Michael, I think there are to sides to the coin, the artistic side and the commercial side. Both have their own importance, but should be assessed by different standards. I agree art is supposed to be timeless. Whether a work of art is really timeless, depends on its artistic qualities, but I don’t see any role for the legislator related to this. Copyright protects the commercial aspect of art, not the artistic quality. Copyright laws do not make artists more creative, they protect their business. As a consequence, I don’t consider the ‘utility’ vs. ‘timeless’ point you want to make, to be relevant to copyright. Copyright is just a legal tool that is supposed to protect artists against having no income – that is, it started that way. I’m afraid today it has evolved more in the direction of not primarily protecting the artist, but the music industry who are exploiting the artists. In the ‘big entertainment world’, it’s the large companies that benefit most from copyright laws and they are using it more and more to keep their outdated business models alive. In the past, an artist needed the record company for the entire production chain of a record: funds for recording it, production of records/CDs, distribution, getting airplay, and so on. With the advent of cheap computers and the internet, things have changed. It’s normal for an artist (not only the ‘big shots’) to have a studio of their own. They can record there and only hire studio time for mastering, making the whole production process much cheaper. You can promote yourself throught the internet, distribute with iTunes. It won’t be long until the ‘record company’ is completely obsolete. Instead of finding new ways for their business, they cling to their old business models and fight downloading. This battle can only be lost, because the legislation no longer matches the technical possibilities. I don’t think a historical overview like the one above really helps with the issues now being faced.

    The times of Mark Twain and Mickey Mouse have long passed.

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