When Mickey Mouse Goes Public

2002 B.C. Intell. Prop. & Tech. F. 103001
When Mickey Mouse Goes Public

by Helle Sachse, Staff Writer

Some of the earliest Mickey Mouse movies could soon lose their copyright and find their way into the public domain. The upcoming decision of the Supreme Court in the case of Eldred v. Ashcroft will decide the fate of the latest Sonny Bono Copyright Term Extension Act or “Mickey Mouse Extension Act.”

Fearing the loss of some of its earliest movies featuring the well-known rodent into the public domain, the Walt Disney Company urged the passing in 1998 of the act which extends existing copyrights by 20 years. Under the law, works by individuals are now protected for 70 years after the creator’s death and copyrights held by corporations will remain in force for 95 years. The extended copyright terms are equal to those of most European countries.

The Act was challenged by Eric Eldred, an internet publisher from New Hampshire, who sought to include poems by Robert Frost in his publications, but was banned from doing so by the law. He is joined among others by a small publisher of local and family histories from Salem, MA and several publishers of affordable books and sheet music. Representing Eldred et al. is Lawrence Lessig, a law professor from Stanford, who has become a guru-like figure in the digital and internet arena.

This case has drawn a large number of amicus curiae briefs in support of both sides. With some of the large recording and movie studios favoring the law in support of the respondents, the challenge to the law is supported by several educational, archival and library institutions as well as by internet publishers who depend on cheap and easy access to (formerly) copyrighted works.

This is the first challenge to a copyright extension and the Supreme Court’s grant of certiori came as a surprise after the plaintiffs had lost their challenge at trial and on appeal. The Constitution’s grant of “exclusive Right(s)” to authors and inventors for “limited Times” to “promote the Progress of Science and useful Arts” has been extended numerous times from the initial 28 years to 70 and 95 years under the latest act. Thus, one of the petitioner’s main points during oral arguments before the Supreme Court has been that this latest extension is unconstitutional because it renders the copyrights “functionally unlimited.” The challengers’ second argument claimed that the law’s retrospective application to existing copyrights does not encourage creativity and, therefore, does not further the purpose of the copyright clause.

In response, the Solicitor General Theodore Olsen defended the law under Congress’ “broad grant of power.” In his view, even if the law did not further creative efforts it was still constitutional because Congress was entitled to have the financial benefit of copyright holders in mind when passing the law.

Petitioners’ First Amendment argument, prominently featured on appeal, took a back-row seat before the Supreme Court likely because courts have traditionally rejected the position that copyright restrictions limit free speech. Rather, Lessig now presented the case as one in which Congress overstepped its enumerated powers. The court will likely be sympathetic to this concept, but faces the difficulty that a challenge to this copyright extension implicitly also challenges previous extensions, possibly resulting in chaos. During oral arguments no member of the court voiced much support for the law. However, as several of the justices expressed, they might not agree with the law as a matter of public policy, but will they find it unconstitutional?