Stealing Mickey Mouse: Tit for Tat Legislation Is Bad Policymaking

Jaci McDole May 13, 2022
May 13, 2022

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On May 10, 2022, Senator Josh Hawley introduced the Copyright Clause Restoration Act of 2022, a bill whose sole intent is to deprive Disney of copyright protections in retaliation for the company’s “woke” stance on social issues. This move is petty, unconstitutional, overall bad policymaking, and violates U.S. obligations under the World Intellectual Property Organization Copyright Treaty (WCT). The Senate Judiciary Committee should let this bill die.

According to the U.S. Patent and Trademark Office’s (USPTO) recent report on IP-intensive industries in 2019, copyright-intensive industries contribute $1.29 trillion in GDP and directly or indirectly support 8.5 million U.S. jobs, including 33,000 Missourians. Yet Hawley, who is the sole sponsor of this bill, seeks to negatively affect these U.S. workers solely because Disney took a particular stance on socio-political issues. Regardless of which side of the aisle one stands on, this is poor policymaking that negatively affects the U.S. economy, jobs, competitiveness, and entire industries. Also, it is inappropriate to use legislative changes in tit-for-tat politics.

Due in large part to efforts led by creator and politician Sonny Bono, the general duration for copyright protection in the United States for works created after January 1, 1978, is currently the life of the author plus 70 years or, “For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first.” This term is automatic and does not require renewal. Works created prior to January 1, 1978, received 28 years of protection with the option to renew and extend copyright protections under the 1909 law. 1992 and 1998 amendments to U.S. copyright law have enabled certain pre-1978 works to, in effect, enjoy protection durations equivalent or close to their post-1977 counterparts. Additionally, in 1996, the United States played a key role in negotiating the terms of the WCT, including the minimum duration of 50 years of copyright protection for any kind of work. Hawley’s bill seeks to reduce the term of copyright—for both pre-existing and future works—back to the 1909 standard of 28 years, with an option to renew for another 28 years. 

The first problem with this is if a work isn’t an initial hit, creators don’t reap the benefits if it becomes a success later on. Where would the world be without Stan Lee, Vincent van Gogh, and cult classics? Second, applying the term retroactively runs afoul of the takings clause. In addition, the selective and retaliatory nature of this legislation is cause for concern as to free speech and due process violations. Steamboat Willie only has two more years before he enters the public domain; leave him be until then. Third, reducing protection to 28 years with an option to renew violates the United States’ commitment to a minimum of 50 years under the WCT. Outright violating terms our government fought to institute is asinine. 

Nothing about the Copyright Clause Restoration Act of 2022 is appropriate, reasonable, or necessary. It contradicts the United States’ international commitments as well as the Constitution, and it harms creators, copyright-intensive industries and their workers, and the overall U.S. economy and its competitiveness. The Senate Judiciary Committee must continue to fight for the rights of creators and innovators, including quashing this proposed legislation.