Whenever the subject of “copyright” comes up, one character inevitably comes up:
Mickey’s copyright protections are ending! Next year! And the horror stories are limitless.
Non-Disney companies will be printing off Mickey Mouse shirts like crazy! There will be new “Mickey Mouse” shorts and films. And unscrupulous creators will have Mickey Mouse doing god-knows-what or who-knows-what…but the worst case scenario is, well, you guessed it, porn. (Of course, worries one and three are already happening…)
In this case, folks are right that copyright law “finally” catching up to characters like Mickey Mouse is a big deal. It’s such a big deal that everyone is rightfully writing about it, from The Economist to The New York Times. Two of my favorite takes, though, came from The Ankler’s Andy Lewis, aka The Optionist, who had two interviews on the subject, including a fascinating interview with Rhys Frake-Waterfield, the filmmaker of Winnie-thePooh: Blood and Honey. (Turning Pooh into a horror villain is the Disney nightmare scenario come to life!)
The one thing I haven’t seen written is a take on the strategic impact of this big shift. For all that we focus on how technological changes impact business, we often neglect the role of regulation. In this case, the fact that Congress didn’t extend copyright protections for another twenty years could absolutely hurt some of the biggest studios in Hollywood.
Or there’s a chance that it won’t.
As copyright protections end for some major characters, some players in Hollywood will benefit and others will be hurt. Smaller producers could have access to newly freed material and directly profit, but they’ll face a daunting legal landscape. And that could result in the worst of both worlds. I previously wrote about copyright—checks website archives—back in 2018! So I think it’s worth relooking at this issue today, especially since Mickey Mouse is so close to hitting the public domain. (For real this time.) I also got a ton of feedback on a thorny side issue—trademark protections!!!—that only makes me more convinced we need a better solution for both copyright and trademark law.
The CliffsNotes Background on Copyright Law and Protections
For those who don’t know the background, the Hollywood studios (but in particular The Walt Disney Company) didn’t like the idea that all of their famous characters, films and franchises (now affectionally just abbreviated to IP) would hit the public domain after their copyright terms ended. Copyright law is—true fact—embedded in the Constitution. But in the 18th century, the founders were looking to protect book authors; the founders didn’t envisage mega-corporations making massive feature films that would hold value nearly a hundred years later.
As a result, throughout the 20th century, Congress kept amending the law to extend the length of time afforded by copyright protection, including the last round in 1998 when it was extended to a whopping 95 years. Nearly a century! Historically, one studio has cared the most, the Walt Disney Company, because they have the oldest, most enduring IP in Mickey Mouse. Indeed, the last round of negotiating the law was derisively nicknamed the “Mickey Mouse Protection Act”. (Officially the Copyright Term Extension Act.)
A lot has changed since 1998, both in politics and business. In particular, the studios have lost a lot of sway with Congress, some of which went to the Big Tech giants, who wouldn’t mind seeing a more lax copyright law. (Google would love a bunch of free books and films and videos to stream, for example.) In particular, the studios lost the fight over SOPA (Stop Online Piracy Act), which would have given them more power to stop piracy on Big Tech owned platforms.
After Disney’s public battles last year with Ron DeSantis/Republicans in Florida, I have a hard time seeing any Republicans working to help Disney this year. So no one is planning to extend the copyright law this time around. If you had asked me—or anyone—ten or twenty years ago if Mickey Mouse would hit the public domain, few folks would have bet on that outcome, but it’s a reality today.
One Executive’s Nightmare is Another’s Opportunity
The upside for creatives (writers and directors), distributors and producers is that all this new material will provide a wealth of potentially-great new stories.
Indeed, the ability to freely use material in the public domain almost always allows for innovation and experimentation. As a fan of electronic dance music, remix culture has helped that genre thrive globally. And social media websites are only hyper-charging this trend, with Twitter users and TikTokers remixing countless movie scenes into memes or making dance videos.
Films that are out of copyright tend to have more, different iterations than films owned by one studio (or copyright holder). Peter Pan gets rebooted by every studio every decade or so, including Disney’s latest attempt in April. (There’ve been four Peter Pan films since 2015, and before that 2003’s Peter Pan and Neverland. And Hook in the 1990s.) Last year, Disney and Netflix had dueling Pinocchio’s on streaming. The characters Robin Hood and King Arthur get rebooted or remade every decade or so by different studios. Not everyone one of these attempts is successful—nothing is a sure thing in Hollywood—but that doesn’t stop producers from trying.
Compare that to Winnie the Pooh, who just entered copyright this year. While Disney did make new Winnie the Pooh films in 2011 and 2018, this year saw the first non-Disney film, the horror film Winnie the Pooh: Blood and Honey, which grossed $4.2 million at the box office. (The filmmaker has his own horror spin on Peter Pan coming next year.) Meanwhile, the folks behind the Paddington films have announced plans to make a Winnie the Pooh prequel. There’s also a Christopher Robin TV show in development where, “Christopher Robin is a disillusioned New Yorker navigating his quarter-life crisis with the help of the weird talking animals who live beyond a drug-induced portal outside his derelict apartment complex, the Hundred Acres.” It’s likely Disney will make something else with their characters to help reinforce their trademarks too. (An issue I’ll address later.) So we’ll see a little run on Winnie the Pooh adaptations. That’s good for customers!
Who are the winners of the fact that copyright law has finally caught up? Well, the folks who don’t own the original copyrights. Creative producers stand to benefit the most, as they can do their own versions of still famous characters from previously-locked-up books and films. Or they’ll find previously unknown works and make those famous.
Or will they?
The Studios Will Fight Back
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