Copyright Term Extensions and the End of the “Mickey Mouse Rule”

Years ago, in a course on intellectual property law, our professor dedicated several class sessions to what she called the “Mickey Mouse Rule” – a pet name among some law professors and intellectual property attorneys for the Sonny Bono Copyright Term Extension Act of 1998. The Act added 20 years to the term of copyrights, preventing a great deal of material from entering the public domain in 1999.

While other copyrighted works figured into the decision to pass the Act as well, many observers felt it was Disney’s set-to-expire copyright on the 1923 cartoon Steamboat Willie – which included the first appearance of Mickey Mouse – that was the deciding factor in Congress passing the legislation.

There’s little of direct significance to the adult industry with the expiration of copyrights from the early 20’s, but the fact Congress chose not to extend the term of copyright again in recent years suggests a shift in the way Congress views the role of copyright in the internet age – and perhaps more to the point, the ability of copyright law to rein in use of copyrighted materials in an environment like the internet.

As Ars Technica noted in an article this week, another thing which has change is the extent to which groups like the Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA) lobbied Congress for another extension, this time around.

“It’s not something we are pursuing,” an RIAA said when asked about seeking an extension around this time last year.

Cornell Law School Professor James Grimmelmann said the reason groups like the RIAA, MPAA and Authors Guild didn’t lobby hard for an extension was they knew they wouldn’t get what they wanted, this time around.

“There’s now a well-organized, grassroots lobby against copyright expansion,” Grimmelmann said. “There are large business interests now on the anti-expansion side. Also a wide popular movement that they can tie it into.”

What the expiration of these old copyrights doesn’t mean is that rightsholders like Disney now have zero means of preventing other parties from making use of their cherished characters and other creations. For starters, the copyright on Steamboat Willie won’t expire until January 1, 2024.

Disney also still owns a variety of trademarks relating to Mickey Mouse and copyrights associated with later depictions of their flagship rodent – and presumably they’re prepared to use those marks and copyrights to prevent third parties from profiting off Mickey depictions subject to them.

Still, the expiration of copyrights like Steamboat Willie, as well as those covering a variety of books, films and other works means those other than the original creators and their heirs will be able to republish and adapt works which have been unavailable for such use for almost 100 years now.

Whether you think this is good news or bad depends on your view of intellectual property rights and how long you believe copyright protection should last. Should copyright transfer to the heir of the original creator in perpetuity? Is the life of the author plus 70 years enough? Is 95 years from the first publication or 120 years from the time of creation (whichever comes first) too much?

Regardless of your opinion, this much is certain: The whole field of intellectual property law has been immensely and irrevocably changed by the advent of the Digital Age.

Whatever the role of copyright may have been in decades past, it simply isn’t possible for copyright to be policed as effectively now as it was in the days when reproducing works required the use of a printing press. As much as anything else, the expiration of the ‘Mickey Mouse Rule’ may be a recognition of that fact.