When Copyright Criticism Is Something Else

Photo by Tamagocha

A couple weeks ago, a comment on the Illusion of More Facebook page proposed that the Walt Disney Company was able to get its start in the 1930s because the story for the studio’s first animated feature film Snow White and the Seven Dwarfs was “in the public domain.”  I don’t mean to pick on one particular comment or its author, but there is a lot in this statement that reflects widespread misunderstanding about copyright law and how it works.

First, of course, is that most references to Disney are inspired by the almost universally-believed narrative that the Disney Company was directly responsible for extending the U.S. copyright term in 1998 to its present duration.  Hence, I assume the comment was meant to reveal a hypocrisy—namely that Disney needed access to the public domain that today’s creators don’t have—and they don’t have it because of Disney!  Indeed, that could be reason for outrage, if only it were true.

Disney Did Not Write the Sonny Bono Copyright Term Extension Act 

Although, Representative Sonny Bono would eventually become a co-sponsor and strong supporter of H.R. 2589, the legislation did not begin with him. The law bears his name as a posthumous honor bestowed after Bono died in a skiing accident, which occurred two months before the bill was first debated by the House Judiciary Committee.

Nevertheless, the internet loves a scandal and so helps keep alive the myth that Bono personally walked the halls of Congress with pockets full of Disney’s cash charged with the task of extending the copyright term to protect the Mouse. Disney was certainly among the rights holders who lobbied for the term extension, but they were one of many and do not appear to have played any special role or to have spent extraordinary campaign sums relative to typical expenditures of other rights-holding petitioners.

When the U.S. finally joined the Berne Convention Treaty in 1989 (a treaty that began in 1886), this mandated the change in our copyright terms from a fixed 56-year duration to life-of-the-author plus 50 years.  Then, as Europe moved toward formation of the EU (1992), that alliance mandated that all partner nations amend their copyright terms to life plus 70 years. In response, the U.S. Congress proposed the same terms in order to maintain parity in trade. And that was the main impetus for the term extension.* It’s not as dramatic a story as Mickey Mouse button-holing Members of Congress in the Rayburn Building, but it’s a digest version of how things actually happened. The SBCTEA passed with solid, bi-partisan, bi-cameral support and was signed into law by president Clinton in 1998.

Was Disney Relying on the Public Domain with Snow White?

Sorta, but not really.  Because the Brothers Grimm were collectors of tales that were part of an oral tradition, it’s a little difficult to view their works through a modern copyright lens and know which elements might arguably have been part of the commons at the time. Regardless, a hypothetical copyright could be granted for their unique telling of a particular tale, and this would apply to the story entitled Snow Drop, which is the underlying work that became Disney’s Snow White and the Seven Dwarfs.  But even if we were to imagine a copyright in that work under current terms, then it would have expired 70 years after Jacob Grimm’s death, which brings us to 1933—four years before Disney made the movie.

So, yes, the story of Snow Drop was in the public domain at the time, but not in the way the commenter—or indeed most copyright critics—mean when they seek to argue that contemporary terms are onerously long.  The general assumption is that in 1937, Disney had a richer and deeper well of material to build upon than contemporary creators have at their disposal, and that Disney then used copyright law to close the proverbial door behind them to keep everyone else out.  While it may seem intuitive that copyright’s current terms would stifle the growth in works since 1998 (or some think since 1790), that belief is not supported either by statistical or anecdotal evidence.

Disney May “own” Snow White, but They Don’t Own Snow White

Feeding this false narrative is the idea that copyright “locks up” works for long periods, keeping them out of reach of new creators.  Although nearly every author will confirm that building upon existing works, ideas, tropes, themes is part of the creative process, this fact is not so greatly in conflict with copyright’s boundaries as many a non-creator pundit would have us believe. And Snow White is as good an example as any.

A creator—whether Disney or anyone else—may only copyright a unique telling of this classic tale.  Ditto The Little Mermaid, Beauty and the Beast, Pinnochio, and many other titles in the traditional Disney oeuvre.  The studio may only copyright its versions of these stories; and for Disney, the most valuable aspect of their work is often the pictorial, graphic, or sculptural (PSG) interpretations of the classic characters (see Disney merch).  But the relevance of the idea/expression distinction here is, I suspect, overshadowed by a different phenomenon, which is really a complaint about market dominance.

One could argue that the “Disneyfication” of classic tales can have a homogenizing cultural effect because the company’s vast resources enable, for instance, a single interpretation of Snow White to dominate popular imagination for generations. This is a valid criticism or conversation to have, but it’s one about American culture, business, and marketing that isn’t really influenced by copyright terms as much some may assume. Nevertheless, I suspect responses to these cultural or aesthetic criticisms tends to color the copyright narrative, particularly when invoking Disney.

If anything, copyright only helps to mitigate creative homogenization by disallowing unlicensed copying of what some may view as corporatized versions of stories and characters. As Harvard scholar Joseph P. Fishman pointed out in his study in 2014, boundaries like copyright tend to be generative for creators, while too much freedom to copy can actually stifle originality. Creators don’t really need a study to know this is true; they can tell you this from experience.

What About the Comics?

Moving on to a different part of the Disney organization, we have the Marvel franchise.  These more contemporary works comprise characters and narratives that many people believe belong in the public domain because they are so ingrained in common culture that it feels like these classic heroes and villains belong to all of us.  But one aspect of this idea that is often overlooked is that these characters attained that place in our hearts and minds because they were controlled franchises.

If you were a Daredevil fan growing up, you didn’t wait with anticipation to hear what your friends thought should happen next, you waited for the next issue to see what really happened next.  Without this common experience shared by fans, Daredevil would not have become a staple of the Marvel universe—and neither would any other character.

The assumption promoted by copyright critics is that when Daredevil falls into the public domain, this will spawn new, innovative ways to build upon the character for more creators.  Perhaps, but not necessarily.  As noted in an earlier post, even with PD works, we tend to see that one version at a time emerges for a period because the market only sustains so many variations at a time.  The example I cited previously is that it would be tough to compete right now with the Sherlock Holmes TV series starring Benedict Cumberbatch; and this is true for reasons having nothing to do with copyright.

So, it seems that a lot of copyright criticism, in certain contexts, is tangled up with aesthetic or emotional sentiments associated with popular and famous stories and characters.  There will always be consumers who don’t like the way a popular work is treated, even by its original creator. Just look at Star Wars. For every ten million fans, there are a hundred million opinions about what George Lucas did, or should have done, with his franchise.  But it was his franchise. If you want to decide the fate of a new multi-billion-dollar franchise, you’ll just have to invent your own.  And as many readers know, that’s exactly what Lucas did when he couldn’t get the rights to make Flash Gordon. 

*As a colleague noted since publication, there was more to this than trade harmonization; but without enumerating the various terms of copyright for different works, suffice to say that it still wasn’t about Disney and Mickey Mouse.

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