Republicans continue to take shots at Disney this week, with the latest volley coming from Senator Josh Hawley (R-Mo.).
What is Hawley proposing? The senator from Missouri has introduced the Copyright Clause Restoration Act (download PDF) which would, according to Hawley’s office:
- Limit new copyrights to 56 years, the same period that persisted for most of the 20th century, which is plenty of incentive to encourage authorship.
- Make this change retroactive for the biggest entertainment companies, including Disney, that were granted unnecessarily long monopolies. Under this legislation, Disney would begin to lose protections for some of its oldest and most valuable copyrights.
- Delay implementation for certain license holders, to reasonably protect pre-existing contracts.
It should be noted that the 56-year term Hawley references would include an initial 28-year term with the possibility of a 28-year extension when the first expires. Currently, copyright protections extend up to 95 years.
What is the motivation behind the proposal? According to Hawley:
The age of Republican handouts to Big Business is over. Thanks to special copyright protections from Congress, woke corporations like Disney have earned billions while increasingly pandering to woke activists. It’s time to take away Disney’s special privileges and open up a new era of creativity and innovation.
Looking at the bigger picture, Hawley’s move against Disney comes as Republican lawmakers from across the country ramp up their anti-Disney rhetoric. Hawley’s bill is very specifically targeted at Disney, as the law would only affect motion picture studios and theme park companies with a market capitalization of more than $150 billion.
Florida governor Ron DeSantis has regularly and publicly spoken out against The Walt Disney Company, and last month signed a bill to strip Disney World of its self-governing status after the company criticized the Florida Parental Rights in Education (“Don’t Say Gay”) bill.
In an open letter requesting more stringent ratings for kids’ TV programming, five U.S. senators denounced Disney corporate president Karey Burke for saying that she hopes the company introduces “many LGBTQIA characters into our stories.” The letter also condemned Disney for its opposition to the Florida education bill.
What “special copyright protections” is Hawley referring to? The Walt Disney Company has played a major role in establishing and modifying modern U.S. copyright law.
The Mickey Mouse character was first widely introduced in the 1928 short film Steamboat Willie. At the time, copyright law protected Disney’s ownership of the character for 56 years (28 years with a 28 year extension), as indicated by Hawley’s release.
However, as that period came to an end, Disney lobbied hard in favor of reforming those laws and eventually got the Copyright Act of 1976 passed. A couple decades later, the company was again able to delay Mickey’s move into the public domain through the Copyright Term Extension Act of 1998, which is sometimes mockingly referred to as the Mickey Mouse Protection Act. That extension is due to lapse in 2024.
Will Disney be able to extend its copyright again? It’s too early to say for sure, but several Republican lawmakers have already indicated that they won’t support an extension, none more harshly than Rep. Jim Banks (R-In.). In an open letter to Disney CEO Bob Chapek, Banks said:
Given Disney’s continued work with a Communist Chinese regime that does not respect human rights or U.S. intellectual property and given your desire to influence young children with sexual material inappropriate for their age, I will not support further extensions applicable to your copyrights, which should become public domain.
What exactly will hit the public domain if an extension isn’t granted? Initially, only the copyright for Steamboat Willie will expire, meaning that only the original Mickey design from that film will hit the public domain, not the Mickey we’re familiar with today. The film itself will still belong to Disney, and trademarks will continue to protect Disney’s financial interests, controlling the commercial use of its characters.
Will Hawley’s bill pass? Almost certainly not, given that the Senate is currently controlled by Democrats. The hastily-written proposal is based on copyright law that predates tv and the internet. The 28-year term Hawley refers to, for example, was established in the Copyright Act of 1909.
And, as pointed out by The Verge’s Sarah Jeong, who often covers copyright issue, the proposal is illegal for several reasons:
The requirement for an application for an extension is, similarly, an outdated legal formality that was abandoned by the Copyright Act of 1973, barred from future law when the United States signed onto the international copyright treaty known as the Berne Convention in 1988, and further precluded by a succession of trade agreements (for example, NAFTA in 1994, KORUS in 2007). A reduction of copyright terms to 28 years is also barred by international law.
Would there be advantages to more serious versions of copyright reform? For artists? Definitely. For starters, artists don’t live for 95 years past the date of their creations and don’t need the types of copyright protections that big businesses are fighting for. Also, additions to the public domain add to the pool of characters, stories, and ideas available to artists. For example, F. Scott Fitzgerald’s The Great Gatsby entered the public domain year, and shortly after an animated feature adaptation was announced.
Many critics of modern copyright law are quick to point out the hypocrisy of Disney’s lobbying. The company has made billions adapting public domain works such as Alice in Wonderland, Cinderella, The Jungle Book, The Little Mermaid, Beauty and the Beast, and The Snow Queen (reimagined as Frozen), yet the company takes extraordinary efforts to keep its own properties locked up.
What has been the response to Hawley’s proposal? For the most part, derision. Nearly unanimously, industry trades are dismissing Hawley’s bill as a PR stunt.
Deadline’s Ted Johnson gives the bill little chance for success:
Sen. Josh Hawley (R-MO) managed to get outsized attention for legislation that likely will go nowhere: A bill that targets Disney by reversing copyright protection for large media conglomerations.
The Hollywood Reporter’s Winston Cho is equally pessimistic, and contextualized the political nature of the proposal:
The proposal brought by Hawley is unlikely to pass given the Democratic majority in the Senate. Even so, Republican lawmakers’ appetite to attack Disney to attract conservative voters places the company in the increasingly untenable position of trying to play both sides of the aisle.
And according to Jeong’s piece in The Verge:
This is a deeply unserious bill. There is not a line in it that is meant to pass muster. It is knowingly in violation of the Constitution, and an insult to the democratic process.