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:
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.
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.