The Copyright Expiration Free-for-All
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From the The Morning Dispatch on The Dispatch
Happy Thursday! In what sports fans across the globe are accurately calling a “dartbreaker,” 16-year-old Luke Littler’s unbelievable quest to become the youngest darts world champion ended yesterday. He was beaten by Luke Humphries, who, at 28 years old, had the unfair advantage of actually being allowed to drink in the pubs while practicing for the championship.
Quick Hits: Today’s Top Stories
Two explosions killed at least 80 people and wounded nearly 300 others on Wednesday at a ceremony in Kerman, Iran, commemorating the fourth anniversary of the killing of Quds Force commander Qassem Suleimani. No nation or organization has yet claimed responsibility for the attack, described by Iranian officials as an act of terrorism, and Tehran has not officially attributed blame. The Biden administration yesterday rejected any suggestion that either the U.S. or Israel was behind the bombing, later assessing that the Islamic State—a longtime enemy of the Shiite Islamic Republic of Iran—may have carried out the attack.
The United States, Australia, Bahrain, Belgium, Canada, Denmark, Germany, Italy, Japan, the Netherlands, New Zealand, Singapore, and the United Kingdom released a joint statement on Wednesday warning Yemen’s Iranian-backed Houthi rebels against further aggression against commercial ships in the Red Sea. “Ongoing Houthi attacks in the Red Sea are illegal, unacceptable, and profoundly destabilizing,” the statement read. “Let our message now be clear: we call for the immediate end of these illegal attacks and release of unlawfully detained vessels and crews. The Houthis will bear the responsibility of the consequences should they continue to threaten lives, the global economy, and free flow of commerce in the region’s critical waterways.” The statement followed reports that the U.S. and Britain were prepared to carry out airstrikes against the group if its maritime assaults didn’t stop. The Houthis have attacked at least 24 ships in the Red Sea since mid-November, disrupting the flow of international shipping through the busy waterway.
Ukraine and Russia exchanged more than 200 prisoners each, officials announced on Wednesday, marking the largest swap of the war. In total, 230 Ukrainians and 248 Russians were freed from captivity as part of a deal mediated by the United Arab Emirates (UAE). “Our people are home,” Ukrainian President Volodymyr Zelensky tweeted. “Today, we returned over 200 warriors and civilians from Russian captivity. … I am grateful to our defenders. We are making every effort to return all of our people who are still in Russian captivity.” Though neither Russia nor Ukraine have revealed the exact number of prisoners of war held, more than 4,000 Ukrainians are still believed to be in Russian captivity.
Ernest Bai Koroma, the former president of Sierra Leone, was charged with treason on Wednesday over his alleged involvement in an attempted coup in late November 2023. During the attack, gunmen assaulted a military base and several prisons in the nation’s capital of Freetown, freeing nearly 2,000 inmates and killing at least 20 people. Koroma’s trial is scheduled to begin on January 17.
House Speaker Mike Johnson led a delegation of nearly 60 House Republicans to the southern border in Texas on Wednesday to meet with federal and local officials about the ongoing migrant crisis. “One thing is absolutely clear: America is at a breaking point with record levels of illegal immigration,” Johnson said at a press conference held in Eagle Pass, Texas. “Today, we got a first-hand look at the damage and the chaos the border catastrophe is causing in all of our communities. … It is an unmitigated disaster, a catastrophe. And what’s more tragic is that it’s a disaster of the president’s own design.” According to ABC News and other sources, there were reportedly more than 300,000 migrant encounters at the border in December—the highest monthly number in U.S. history.
Former President Donald Trump formally asked the U.S. Supreme Court on Wednesday to overturn a Colorado ruling removing him from the state’s primary ballot. In appealing the Colorado Supreme Court’s decision, Trump’s lawyers argued that “the President is not ‘an officer of the United States’” under Section 3 of the 14th Amendment, and that he did not participate in an insurrection on January 6, 2021. “[The] Colorado Supreme Court decision would unconstitutionally disenfranchise millions of voters in Colorado and likely be used as a template to disenfranchise tens of millions of voters nationwide,” Trump’s lawyers wrote in the filing. Colorado’s secretary of state, Jena Griswold, asked the Supreme Court to consider the case “as quickly as possible” in a statement released Wednesday.
Job openings ticked down to 8.79 million in November, the Labor Department reported Wednesday, the lowest mark since March 2021. The numbers indicated that the labor market continues to cool, as the hires rate dropped slightly from 3.7 percent in October to 3.5 percent in November, while the quits rate—a sign of workers’ confidence in their ability to find new employment—fell to its lowest level in over three years, from 2.3 percent in October to 2.2 percent in November.
Mickey Mouse Breaks Free, Kind of
The new year is already shaping up to be volatile, with contentious major elections across the globe and escalating conflict in the Middle East and in Ukraine. On top of all that, we could see multiple Mickey Mouse slasher films this year, thanks to the copyright expiring on the famous 1928 “Steamboat Willie” cartoon featuring Mickey and Minnie. The early representation of the beloved Disney mascots entered the public domain on New Year’s Day—opening the floodgates for horror enthusiasts and spotlighting the oddities of American copyright law.
January 1 has become known in the copyright world as Public Domain Day—an occasion to mark the official release of films, books, music, and more for free public use after copyrights have lapsed. This year, books by Agatha Christie, Virginia Woolf, W.E.B. Du Bois, and Robert Frost, among others, became free to use. Charlie Chaplin’s film, The Circus, and music by Louis Armstrong, Ma Rainey, and Cole Porter also entered the public domain. (In addition to “Steamboat Willie,” Disney’s hold on the “Oswald the Lucky Rabbit” cartoons and the silent version of “Plane Crazy” also ran out).
Artists and creators are now free to re-engage, recreate, and remix these works. “Community theaters can screen the films,” explained Jennifer Jenkins, the director of the Duke Center for the Study of the Public Domain who maintains a site dedicated to Public Domain Day. “Youth orchestras can perform the music publicly, without paying licensing fees. Online repositories such as the Internet Archive, HathiTrust, Google Books, and the New York Public Library can make works fully available online.”
But copyright expirations don’t provide carte blanche for using older works. For a character like Mickey with many iterations, only the “Steamboat Willie” version of the mouse is in the public domain. The later versions of Mickey that most people are more familiar with remain exclusive to Disney. “Creators have to be careful that they are actually using the versions of the characters that appeared in the works that are now in the public domain, and not later versions that are representative works that are still under copyright,” said Robert Brauneis, the co-director of the Intellectual Property Program at the George Washington University Law School. Trademark law also provides authors and companies with additional protections even after copyrights have expired. Brauneis told TMD that if people try to merchandise goods with the likeness of the “Steamboat Willie” Mickey, Disney could sue them for trademark infringement since the entertainment company has long merchandised its characters—and trademark protections have no expiration timeline.
The original creators of works with recently expired copyrights have been dead for decades, but their works are just now becoming public thanks to especially long copyright terms—a central feature, not a bug, of American and European copyright protections. Under current law, authors and creators hold exclusive rights to reproduce their work; create derivative works; distribute, sell, and lease their work; and “in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual work,” perform them publicly. These rights last for 70 years after authors’ deaths, and works created for third parties (e.g., companies commissioning work from an author) have a copyright of 95 years from publication or 120 years after the work was created, whichever comes first.
Why are the terms so long? The current legal regime is the product of two congressional extensions to copyright law over the last 50 years. The Copyright Act of 1976 was a major overhaul of U.S. copyright law, revising its predecessor, the Copyright Act of 1909, to significantly expand copyright terms from 28 years (with an additional 28-year renewal term) to 50 years beyond the life of the author. The law brought the U.S. in line with the minimum term outlined in the Berne Convention—a landmark international copyright agreement—which the U.S. ratified in 1988. Congress then extended the term another 20 years through the 1998 Copyright Term Extension Act. Significantly, the law expanded copyright protections retroactively, preventing any published works from entering the public domain until 2019.
“Developments over the past 20 years have led to a widespread reconsideration of the adequacy of the life-plus-50-year term,” then-Sen. Orrin Hatch of Utah argued ahead of the latter bill’s passage. “Among the main developments is the effect of demographic trends, such as increasing longevity and the trend toward rearing children later in life, on the effectiveness of the life-plus-50 term to provide adequate protection for American creators and their heirs. In addition, unprecedented growth in technology over the last 20 years, including the advent of digital media and the development of the National Information Infrastructure and the Internet, have dramatically enhanced the marketable lives of creative works.” He also highlighted the importance of intellectual property to the U.S. economy: “America stands to lose a significant part of its international trading advantage if our copyright laws do not keep pace with emerging international standards.”
Critics at the time condemned the 1998 extension as only aiding large companies and private interests (such as family estates) at the expense of public benefit and artistic innovation and creation. The law became disdainfully known as the “Mickey Mouse Protection Act,” although some scholars argue Disney was only one of many interests lobbying for the extension—the Gershwin Family Trust, for example, also advocated for the measure. (Disney has become so associated with copyright terms that some GOP lawmakers—following in the footsteps of Gov. Ron DeSantis—proposed shortening terms and retroactively applying the shorter terms to large companies as a way to specifically target Disney.)
Duke’s Jennifer Jenkins argued that multiple factors influenced the 1998 law, including a desire to bring U.S. law in line with the European Union—the European copyright term is 70 years after the creator’s death—but commercial interests played a role as well. “There was also a classic collective action problem where a concentrated, well-connected group of repeat players who owned that tiny slice of blockbuster works exerted disproportionate influence on policy as compared to a larger diffuse group of all those who were harmed by term extension,” she told TMD. Before the 1976 extension, works by C.S. Lewis, James Baldwin, and Dr. Seuss, to name just a handful, would by now have been in the public domain for years. Thanks to the 1998 extension, their copyrights are still decades away from expiring.
Such criticisms get at the heart of debate over the function of copyright law. Copyright protections were originally designed to promote artistic and cultural production by ensuring authors and creators could reap the benefits of their work. But now that copyright terms greatly exceed the life of the author, it’s hard to argue that the incentive structure remains. “If I create a new work right now, is it really important for me that the term be life plus 70, instead of life plus 50?” Brauneis told TMD. “The answer is no. That’s so far in the future. Most works will not be popular that far into the future.”
Jenkins agreed, citing the economics of the issue. “The problem with the long term is that it’s out of sync with the commercial viability of the vast majority of creative works,” she said. “Ninety-nine percent of them aren’t generating any revenue after 95 years, or life of the author plus 70 years, so they’re off limits for no good reason.”
Opponents of lengthy terms like Harvard Law Professor Larry Lessig—who unsuccessfully challenged the 1998 extension before the Supreme Court—argue that a central part of artistic innovation is “remixing” earlier works, something long copyright terms impede. Ironically, Disney is a leading example of the success of such remixing in producing new adaptations and extending the life cycle of older stories. “All of the great Disney works were works that took works that were in the public domain and remixed them, or waited until they entered the public domain to remix them, to celebrate this add-on remix creativity,” Lessig said in a 2010 TED talk. “Mickey Mouse himself, of course, as ‘Steamboat Willie,’ is a remix of then, very dominant, very popular ‘Steamboat Bill’ by Buster Keaton.” Lessig argued that copyright extensions stopped anyone from doing to Disney “what Disney did to the Brothers Grimm.”
While the cultural value of Mickey and Winnie the Pooh slasher films is questionable at best, there are examples of more creative and constructive cultural engagement following works entering the public domain. As Jenkins highlights on her site, The Great Gatsby’s copyright expiration in 2021 helped spur a revival of interest in the book, including multiple new versions with introductions from prominent scholars, an illustrated edition, a graphic novel, a musical, a prequel exploring the life of the book’s narrator, Nick Carraway … and yes, even a reimagined horror version of the book, The Great Gatsby Undead.
Worth Your Time
Tom Scocca is a writer and editor who penned what we can definitely describe as the best medical mystery essay we’ve read so far this year, and not just because it’s only day four. His strange symptoms confounded doctor after doctor and specialist after specialist, and didn’t point to any definitive illness—except for financial stress, maybe. “It was my bad luck, the attending doctor said at my bedside, to be an interesting case,” Scocca wrote in Intelligencer. “Our meetings had a tone of rueful amusement. Yes, I was in pain and reeking from infrequent showering, but we could talk about the unresolved mystery and its submysteries with a certain detachment.” It’s a gripping tale, especially as Scocca shifts his focus from what’s ailing him to whether the mystery’s solution will point him toward recovery. “The actual medical mystery wasn’t about anything inside me. It was whether the tests were going to point to some far side of this where I got my life back. Was there a future where I could walk out the door on Sunday morning in decent shoes and make it to church? Where I could pick up heavy groceries to put a three-course meal on the family dinner table? Where we could rent a rowboat? Where I was a helpful and economically viable member of the household?” We won’t give away the ending.
Presented Without Comment
Former Harvard University President Claudine Gay: “What Just Happened at Harvard is Bigger Than Me”
Also Presented Without Comment
CNN: U.S. National Debt Hits Record $34 Trillion
Toeing the Company Line
Join Sarah, Steve, Jonah, and Andrew Cline of the Josiah Bartlett Center for Public Policy for a meet-and-greet event and discussion on January 17, 2024, at 6 p.m. ET at the Grappone Conference Center in Concord, New Hampshire! Dispatch members can get early access to tickets—more information on how to register can be found here (🔒).
In the newsletters: The Dispatch Politics team considered whether Nikki Haley and Ron DeSantis are going after former President Donald Trump too little, too late as early primaries loom, Jonah analyzed the reaction (🔒) to Harvard President Claudine Gay’s resignation, and Nick wondered whether (🔒) Chris Christie should stay in the presidential race after all.
On the site today: Kevin Williamson writes about Nikki Haley’s candidacy, and Kevin Carroll explains how—and why—Biden should go after the Houthis.
Let Us Know
If you could release a copyright for creative “remixing,” what would it be?
