In support of limited permanent copyright

by John Quiggin on June 24, 2009

I doubt that this is exactly what Ross Douthat had in mind, but I have been thinking for a while about one version of extending the duration of a limited-scope copyright. I’d support a proposal that gave Disney unlimited duration ownership of Mickey Mouse and similar characters, both for economic and political reasons. The political reason is straightforward: if Disney got its own side deal, they would have no reason to keep up the push for indefinite extensions of copyright for books and other things I actually care about.

The economic reason is that Mickey Mouse is not a character in a black and white cartoon produced in the 1920s (and cribbed off someone else, IIRC), and his copyright protection does not (except incidentally) act to restrict people who want to reproduce or adapt Steamboat Willie today.

Mickey is, in the terminology of the industry, a franchise. Disney puts millions into producing and promoting Mickey every year, and reaps even more millions as a result. I think it’s plausible to claim that each individual franchise of this kind is a natural monopoly, and that we would be less well served with multiple Mickey suppliers, as opposed to competing franchises like Bugs Bunny (there’s an analogy here with the debate over sporting teams and leagues which I’m too lazy/busy to work out in full). So, I’d be happy to allow Disney, Warner Bros, DC, Marvel and so on to have permanent rights over their characters, as long as they kept on using them.

That’s the general idea, but implementation would obviously be problematic. For a start, if someone wanted one a permanent right I’d require an annual payment small enough not to restrict competition, but large enough to make it uneconomic to acquire rights over legions of characters “just in case”.

The more difficult question is what to do with characters derived either from the general culture or from specific literary works that we would want in the public domain. I was struck to find out, for example, that although Disney ripped Snow White from the Brothers Grimm, who in turn took it from the folk tradition (of course, without any notion of appropriating private property rights) they own the names of the Seven Dwarfs. Then there is the Bear Formerly Known as Winnie-ther-Pooh, a cartoon character bearing little resemblance to the original. I haven’t got a complete answer on this, but my general view is that protecting the franchise should not impinge on the standard creative uses allowed for work in the public domain.

{ 29 comments }

1

Gotchaye 06.24.09 at 8:52 am

Wikipedia says that Mickey is also trademarked, which lasts as long as Disney keeps using him. Doesn’t that stop people from making their own cartoons with Mickey in them? The way I’m reading it, the copyright lapsing would only put the older cartoons into the public domain, but Disney would still have a monopoly on the creation of anything new with Mickey in it. Or am I not understanding something?

2

mpowell 06.24.09 at 10:03 am

1: Whether this is true or not, it does not address John’s political argument. We need to provide Disney the legal protection they desire so they stop screwing up the copyright process. Creating a separate category and charging them for it would probably be cheaper to them than lobbying every year, so maybe there’s a solution in there.

3

steven 06.24.09 at 10:30 am

So, I’d be happy to allow Disney, Warner Bros, DC, Marvel and so on to have permanent rights over their characters, as long as they kept on using them. That’s the general idea, but implementation would obviously be problematic. For a start, if someone wanted one a permanent right I’d require an annual payment small enough not to restrict competition, but large enough to make it uneconomic to acquire rights over legions of characters “just in case”.

I wonder if there is an interesting potential analogy here with domain names — but the answer to the problem of domain-squatting can’t be to make the registration fees higher, as that would disproportionately hurt the little guy. It might be a good idea to have a “use it or lose it” system in place, though.

4

JDC 06.24.09 at 10:49 am

I’ve always thought the solution to this was to have a long initial term followed by infinite short-term renewals with modest but annoying procedural hurdles. Something along the lines of the first 50 years are free and $100 buys you another 1,000 days of copyright. If you want another 1,000 days, you must fill out the form by hand in blue ink and send an actual cashier’s check for $100 via a fully tracked carrier between days 960 and 970 of the current renewal term. If you fail to do this for any reason, your work goes to the public domain. Entities whose work was genuinely commercially valuable would have plenty of incentive to meet these modest hurdles. People who couldn’t be bothered would have their works go into the public domain. No more orphan work problem.

5

bert 06.24.09 at 11:11 am

IIRC, Disney paid money to A.A.Milne’s descendants/trustees as part of a deal to put granddaughter Clare Milne’s name at the top of a lawsuit against a troublesome competing rights owner.
Genetic inheritance can’t be traded or replicated. The “Milne” brand retains a corresponding value despite the lack of copyright protection, and it was licensed accordingly.

6

Zamfir 06.24.09 at 12:39 pm

Genetic inheritance can’t be traded or replicated.

Trading I don’t know, but replication is pretty much inherent to the concept of inheritence, hmm?

7

Zamfir 06.24.09 at 12:39 pm

bert says: Genetic inheritance can’t be traded or replicated.

Trading I don’t know, but replication is pretty much inherent to the concept of inheritence, hmm?

8

David in Nashville 06.24.09 at 1:12 pm

An immediate issue that springs to my mind concerns the famous case of my fellow Nashvillian Alice Randall and her book *The Wind Done Gone,* a parody of *Gone With the Wind* using thinly disgusied charcters from the original and narrated by Scarlett’s slave half-sister. Margaret Mitchell’s descendants claimed “ownership” of the characters in GWTW, and accordingly the rights to protect them from parody–even though they virtually scream to be parodied. Randall won that one; would she under your proposal?

9

Barry 06.24.09 at 1:22 pm

bert says: Genetic inheritance can’t be traded or replicated.

Zamfir: “Trading I don’t know, but replication is pretty much inherent to the concept of inheritence, hmm?”

She sued me for child support; I sued her for unauthorized use of my, um, ‘intellectual property’. Her lawyers noted that I freely, um, ‘donated’ my ‘intellectual property’, my lawyers counterasserted that she had claimed that she temporarily disabled her, um, ‘xerox’; ….

The case will take at least 18 years to settle, which is long enough….

10

bert 06.24.09 at 2:16 pm

Very true, Zamfir.
But I mean replicated as in pirated plastic lunchbox replicated.
I’d love to be further up the list of those in line to the throne – all those shiny palaces – but inheritance can’t be replicated.
So I’m likely to stay out in the cold with my fellow filthy peasants.
One by one your dreams die.

11

John 06.24.09 at 2:46 pm

logarithmic copyright extension pricing?
i.e. 1st 10 years is free, next 10 years is $10, next 10 years is $100, next 10 years is $1000…

eventually everything hits a point where it isn’t worth extending and goes public, but the more valuable properties can be used by the holders longer.

12

Chris 06.24.09 at 3:40 pm

@4: I like that idea in principle, but 50 years is *way* too long. The initial term should be as short as possible without significantly influencing the publish/don’t publish (or create/don’t create) decision, to promote the public interest in promoting the creation of work in the first place while reducing the load on the public of being unable to use/imitate works that are still in copyright. This will vary somewhat depending on medium and technology, but I bet 5 years would be more than adequate for the vast majority of works, and the remainder could be extended by anyone willing to jump through the bureaucratic hoops, which as you point out, lots of people would be if the rights retained commercial viability 5 years out.

13

StevenAttewell 06.24.09 at 4:53 pm

The political reason is straightforward: if Disney got its own side deal, they would have no reason to keep up the push for indefinite extensions of copyright for books and other things I actually care about.

This seems rather problematic. What you care about, and what other people care about is not necessarily the same thing. Superman’s just a comic book, but the copyright on it is far more important to Siegel and Shuster than to other people. But I instinctively distrust political statements that end with “thing I actually care about.”

14

Cabalamat 06.24.09 at 5:06 pm

@2: We need to provide Disney the legal protection they desire so they stop screwing up the copyright process.

No we don’t. The best way to prevent Disney from screwing up copyright law is to prevent them from doing so, and the best way to do that is to support the Pirate Party, in the UK and other countries.

15

lemuel pitkin 06.24.09 at 6:02 pm

The best way to prevent Disney from screwing up copyright law is to prevent them from doing so, and the best way to do that is to support the Pirate Party, in the UK and other countries.

This strategy is perfectly compatible with John Q.’s proposal. In fact — as is often the case with radicals and reformists — they’re strongly complementary. The more likely a root-and-branch revision of copyright law looks, the more willing Disney will be to accept a compromise like John’s. And the more Disney and other IP-dependent businesses get some kind of escape clause like this, the easier it will be to win the broader goals of folks like the Pirate Party (which I share).

So yeah, activists should be challenging IP head on and economists should be thinking of ways to compensate the IP rentiers without too much harm to the rest of us. It’s all good.

16

Sebastian 06.24.09 at 6:56 pm

Weird, I would have sworn that we talked about this a couple of years ago on a CT Quiggin post. And in my head I’ve been ascribing to him the really elegant solution. But it apparently wasn’t you John, so I guess I’ll just recount it and attribute it to anonymous:

Limited copyright for the life of the artist and some short time after. Say 10 years (exact time negotiable).

Extension for the next 10 years is a couple thousand dollars.

Extension for the next 10 years is a couple of tens of thousands of dollars.

Extension for the next 10 years is a couple of hundred thousand dollars.

Extension for the next 10 years is a million or so dollars.

Extension for the next 10 years is 10% of the gross you earned for the last 10 years or $10 million whichever is MORE.

Repeat the last step as long as you want.

Prices can be modified, this is more of a conceptual guide.

The basic idea is that you want things to go into the public domain unless the current copyright holder thinks they are so valuable that they are willing to pay lots of money into keeping them.

17

Matt Kuzma 06.24.09 at 6:59 pm

I have a problem with this idea because of people like Alan Moore. If this deal were in place 150 years ago, it’s unlikely The League of Extraordinary Gentlemen would have been made. And I want David Fincher or Quentin Tarantino movies about Jedi some day.

Granted the retarded Calvin peeing on stuff bumper stickers would also have been prevented by this, but I’m still not sold on the idea that all reinterpretations or mash-ups of old ideas should be beholden to franchise rights.

18

Righteous Bubba 06.24.09 at 7:12 pm

It’s not just mash-up culture that’s inhibited: radio broadcasts often differ from internet broadcasts of the same program, for instance, due to rights issues.

19

John Quiggin 06.24.09 at 8:00 pm

Sebastian, it’s perfectly possible I’m repeating myself.

20

Sebastian 06.24.09 at 8:34 pm

Well in any case, I do think it is a rather elegant (and revenue enchancing) solution.

21

Tangurena 06.25.09 at 2:24 am

IIRC, Disney paid money to A.A.Milne’s descendants/trustees as part of a deal to put granddaughter Clare Milne’s name at the top of a lawsuit against a troublesome competing rights owner

Close. The Sony Bono Copyright Term Extension Act included a little trick just to end a decade-long lawsuit over the Pooh. A. A. Milne had sold the rights to someone, and during the suit alleged that Disney was shorting them on royalties. For a couple weeks after the bill passed, and only for a couple weeks, a quirky feature was in effect that allowed the heirs of Milne to take back the copyrights: effectively, if a copyright had been sold, the heirs could file a certain type of lawsuit to take back the copyright and the current owners could not defend themselves. I read that it saved Disney a couple hundred million dollars in royalties.

22

Kevin Goodman 06.25.09 at 2:25 am

Why shouldn’t copyright be infinite for the life time of the corporate entity that owns it? I presume most companies wouldn’t survive the life time of a natural copyright and those extraordinary cases are truly the ones that need extensions. I also recognize the need for safeguarding such a privilege from hoarding abuse. Otherwise I’m against fees because property is property and I feel antiquity is no excuse for increased taxation.

23

Demosthenes 06.25.09 at 7:18 am

And why, pray tell, should the rest of us care if Mickey is a franchise? The existence of a franchise does not grant the moral authority to profit from it.

I understand where you’re coming from, but the distinction between trademark and copyright already covers this issue. The copyright should be allowed to expire. To the extent that Congressional reps are cajoled (one could never say bribed) into extending it, that can serve as a wonderful indicator of where changes need to be made in the relationship between Congress and its various corporate patrons.

24

Alex 06.25.09 at 11:25 am

This bears some similarity to the idea (which isn’t original, but I don’t know where to attribute it) that copyright in software should be dependent on active development and/or maintenance – you can have copyright as long as you are still maintaining the codebase or developing it further, but once you cease to do this, it reverts to the public domain, thus preventing you from (frex) abandoning a project that people still use to decay, or continuing to exact rent from a project to which you no longer contribute anything.

I’m not sure what the equivalent would be – still in print? still commissioning from the same author?

25

Danielle Day 06.27.09 at 7:17 pm

Permanent copyright is is bad idea. It effectively prevents satire (see, for instance http://en.wikipedia.org/wiki/Air_Pirates)

26

James Wimberley 06.28.09 at 10:05 pm

Seconding Danielle in #25, I’m against Waltgeld. Alfred had a better policy on Danes than Ethelred: be generous, after victory.

27

John Quiggin 06.29.09 at 12:13 am

There’s no necessary link between duration and scope of copyright. The Air Pirates case took place when copyright durations were much shorter than at present.

In political terms, the opposite: if they had secure and permanent rights over the core commercial uses of Mickey, Disney would have less reason to defend their rights so ferociously against marginal infringements such as parody and satire.

28

Ceri B. 06.29.09 at 6:34 am

I have a suspicion that you can’t design laws to reliably keep the scope of IP claims from totalizing, so long as “this hurts our image and therefore the value of the work” is ever available as a defense. (And it really should be, if there’s going to be any IP protection at all.)

29

Thomas Beck 06.29.09 at 7:48 pm

The problem I have with corporate ownership of such franchises as, say, Mickey Mouse or Star Trek is, the corporation had little or nothing to do with creating it – they are benefitting from someone else’s creativity. Granted, Paramount finally issued a new Star Trek movie actually worth going to see, but even that was due to J. J. Abrams’s creativity. Corporations as corporations cannot create anything – all they can do is exploit, either well or badly. I don’t know legally or morally if there’s anything wrong with that, but should they be permitted to do so perpetually? I’m just asking, because I really don’t know.

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