In Threatening Disney Over Copyrights, House Republicans Are Right for the Wrong Reasons
By blaming their reasoning on culture war grievances rather than the best interests of the law, the GOP risks undermining a completely defensible position.
Republicans are reportedly fed up with The Walt Disney Company for its perceived "far-left activis[m]" and "giv[ing] in to the woke mob." As a result, they are considering retaliating by refusing to legally extend copyright terms that would apply to Disney characters like Mickey Mouse. If allowed to lapse, Mickey would be in the public domain as soon as January 1, 2024.
Punishing a company for political speech is wrong and arguably an abuse of power. Instead, Republicans should allow the copyright to lapse because it's simply the right thing to do, specifically when considering the constitutional purpose of copyright law.
As National Review reported Thursday, Republicans in the House of Representatives are looking to punish Disney for its recent opposition to Florida's controversial Parental Rights in Education law. Detractors have referred to the bill, which Gov. Ron DeSantis signed into law in March, as the "Don't Say Gay" bill for its admonitions against "classroom discussion about sexual orientation or gender identity…in a manner that is not age-appropriate…for students." While Republicans insist that the law merely formalizes the common-sense principle that any talk about sex and sexuality should be conducted only with an appropriate audience, the vagueness of the wording threatens to stifle even the slightest mention of the topics in the classroom.
Disney, which runs its largest theme park in Florida, said nothing before the bill passed the state Legislature, which ironically led to widespread condemnation from Disney employees over the company's silence. After the bill's passage, Disney CEO Bob Chapek apologized for the company's lack of response and stated that it was Disney's wish that the law be repealed.
In response, House Republicans including Indiana's Jim Banks and Ohio's Jim Jordan are threatening to let Disney's copyright on Mickey Mouse run out without passing any legislation that would lengthen copyright terms. Currently, the law stipulates that for works published before 1978, copyright lasts 95 years from the date of publication. Mickey's first published appearance was the 1928 silent short Steamboat Willie, meaning his copyright term lasts until the end of its 95th year, 2023.
But copyright law was not always so generous. Article I, Section 8 of the U.S. Constitution gave Congress the power to "secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The first such law, the Copyright Act of 1790, established a period of 14 years, with the option to renew for another 14 if the author was still alive after the first period lapsed. When Walt Disney released Steamboat Willie, those terms had doubled to 28 years each, meaning that Mickey Mouse would become fair game by 1984. But Congress has since extended those terms twice—each time by 20 years, and each time right before Mickey's copyright was set to lapse.
But allowing Disney, a worldwide mega-conglomerate, to hold onto the exclusive rights to one of its characters for decades upon decades, is antithetical to the purpose of copyright in the first place.
The Constitution's stated purpose in allowing the establishment of copyrights was not to financially benefit publishers, but rather to "promote the progress of science and useful art." In other words, copyrights were not intended to be century-long monopolies but to spur innovation. Keeping Mickey Mouse under the sole custody of one company, despite the fact that Steamboat Willie itself borrowed from films of its day, is completely contrary to the spirit of the Constitution, as well as free enterprise. Walt Disney was not guaranteed 95 years of exclusivity in 1928, and he still saw fit to release Steamboat Willie—clearly, the existing laws did not deter innovation in animation.
In 2012, Derek Khanna, a staffer with the House Republican Study Committee (RSC), drafted a memo that called for an overhaul of the U.S. copyright structure. Based on the premise that the U.S.' copyright laws do not currently spur innovation, the document advocated for sharply limiting copyright terms, as well as expanding exceptions like fair use and lowering the punitively high dollar amounts that can be assessed for violations (the likes of which Disney jealously polices).
But the memo rankled lobbying groups for content-creating industries. The RSC retracted the memo within a day, and Khanna was fired. Ironically, the chairman of the RSC at the time was Jim Jordan, the Congressman who now attests that "Congress should not add to Disney's 90+ years of federal copyright protection to incentivize its new far left agenda." Ideally, Congress would not give any company 90 years of copyright protection, regardless of its political agenda. By singling out Disney for its political speech as the reason not to carve out further sweetheart deals for the entertainment industry, Jordan looks to be doing the right thing for seemingly corrupt reasons.
"I can't think of an idea that's so facially unconstitutional," Khanna told Reason this week after the news broke. "[Jordan] is threatening to expire Disney—yes, copyright should expire, and that's what the [RSC memo] said. But it was equal for everyone… I would never sanction this activity."
