This Mickey Mouse Law

Stay with me for a minute.

There is a new free app in the Apple app store called Disney Action!™ . Using your iPhone camera, it allows you to select one of a number of animated Disney characters, such as Mr. Incredible or Captain Jack Sparrow, and if you aim the camera right, and get the timing right, you make a cute little video where they appear to interact with your friends and the environment. Then, of course, you can share those videos on Facebook or YouTube.

Why should I care? Let me put it this way: Steven Spielberg can now make a movie, albeit a limited one, where he takes Disney characters, puts them in the setting of his choice, decides how they behave, and then publish that movie to a worldwide audience.

He can do this all without previously getting Disney’s permission, or paying a penny in royalties or fees. Disney has given Steven, and every iPhone user in the world, not only their permission, but an explicit license to do so. The only difference is the size of the screen.

If you don’t see the ramifications of what that says about the deeply broken and antiquated nature of U.S. Copyright law, it’s because you are reading this article on The fact that this is Disney we are talking about makes it even more unbelievable, as they have historically been one of the fiercest defenders of intellectual property in the world (of Disney!).

In 1988, Congress passed the Copyright Term Extension Act, which essentially extended the life of all copyrights by 20 years. It was officially named the Sonny Bono Copyright Term Extension Act, in honor of the late congressman, who had supported a similar bill. However, colloquially, it was known as the Mickey Mouse Protection Act.

Disney lobbied hard for this bill, and for good reason: Mickey Mouse was about to pass into the public domain. His 75 years were nearly up. “Can you imagine?” wailed the lobbyists, “If anyone can use Mickey, you’ll have Mickey Mouse porn and Mickey Mouse brand whisky! Won’t somebody please think of the children?”

That was a good argument in 1988, and it’s still a pretty good argument today. Disney has continually used Mickey since his initial appearance in the animated short Steamboat Willie.  He’s the brand of the whole Disney company, he’s one of the most recognized figures in the world, and he stands for something, namely wholesome family entertainment.

The problem is that the 1988 bill extends the 1976 copyright law that was written before widespread adoption of the personal computer or cassette tape, long before cable TV and the VCR, and just forget about DVRs, MP3 players and, the white elephant in the room, The Internet.

The Copyright Act of 1976 is a dinosaur, barely clinging to relevance. It thrashes around, trying to treat all media the same way, when they are clearly very different. If our friend Steven Spielberg wanted to show his home made Incredibles movie in a movie theater, instead of on YouTube, he’d never be sold the rights, or rather, since Pixar is a business, they’d be priced incredibly high. Is someone in this movie wearing a hat with a Nike logo on it? Call the lawyers, pay Nike their licensing fee, and be damn sure the Nike hat will be on the hero, not the villain.

The internet changes everything, and the amazing thing is Disney seems to get it. They have grasped what the RIAA and the MPAA and Getty Images haven’t yet. “Sure!” they say. Take our characters and do what you want with them and share them with your friends. Show the world. Want to make video with Buzz Lightyear instead of Mr. Incredible? Why not? Who needs lawyers and cease and desist letters? 99 cents in the App Store instead please.

Do a search on YouTube for Disney or Mickey Mouse or even the venerable Steamboat Willie, and you’ll see thousands of people hosting full length Disney cartoons. The Disney company clearly stopped sending takedown notices to YouTube years ago. Don’t get me wrong, put the full version of Toy Story 3 on your website and you’ll meet some lawyers damn fast. However, Disney has clearly expanded their idea of the Fair Use doctrine to include, “Meh. It’s not hurting anyone.”

So what does it mean when the champion prizefighter for traditional copyright refuses to step into the ring? It means they figured out they can’t win, that they’re fighting a cloud, and you can’t punch out a cloud. So why not make friends with the cloud instead?

As for copyright law, there can be serious consequences for not vigorously defending your trademarks. Currently, if Disney did not go after Micky Mouse brand whiskey and shut them down, even with Mickey’s extended lifespan, they would run the risk of losing their rights to the Mouse. So now that they are not only abandoning most of the fight against the internet, they are actually encouraging sharing, this is a serious fork in the eye of traditional copyright.

Hopefully, this all means that change is in the near future, and a new, completely re-written copyright law will be written by saner, more modern heads. One can hope, anyway. The Copyright Act of 1976 was the replacement for the Copyright Act of 1909. So many modern advances in media – radio, movies, records, television – had come into mainstream America, the 1909 law was totally obsolete.

And the 1909 law? Yep, that was a replacement too, for a 1790 law. On updating that 1790 law, President Teddy Roosevelt wrote:

“Our copyright laws urgently need revision. They are imperfect in definition, confused and inconsistent in expression; they omit provision for many articles which, under modern reproductive processes, are entitled to protection; they impose hardships upon the copyright proprietor which are not essential to the fair protection of the public; they are difficult for the courts to interpret and impossible for the Copyright Office to administer with satisfaction to the public.”

Well said, Sir. Now don’t get me started on patent law.

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I am the Duke Ferris you are looking for.

There is (almost) only one. As I abandoned Facebook as a fool’s wasteland, I will (try to)  start updating here so that it does not interfere with the lives of the people who are not interested, which is almost everyone on Earth.

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