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tennesseeprelawland · 4 years ago

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Disney Remakes Strike Up Conversation About Copyright

By Abigail Morici, Rhodes College Class of 2021

July 15, 2020

Like many movies set to premiere this summer, Disney’s Mulan has been postponed a third time to a later date of August 21. [1]The film, initially slated to premiere on March 27, marks history as the most expensive live-action film directed by a female filmmaker with a budget of at least $200 million. [2]The film is also a part of Disney’s decade long trend of remaking and reimagining its older animated films.

Since 2010, Disney has released nearly around a dozen remakes, beginning with the release of Alice in Wonderland(2010), starring Johnny Depp, and at least a dozen more are allegedly in the making. [3, 4, 5]With all these remakes, a conspiracy theory has arisen—that Disney is remaking the movies to extend the copyrights of these original movies. Such a conspiracy theory is false since a new work cannot extend the copyright of another.“If it did,” Jonathan Bailey, author of Plagiarism Today, writes, “Disney and other rightsholders would be constantly modifying and re-releasing new works based upon old ones to extend the clock.” [6]

Bailey suggests that even though the company cannot extend its copyrights, copyright may still motivate some of their decisions in their remakes. Firstly, the remakes create more opportunity for Disney to claim exclusivity on the property—for instance, if they were to create sequels or incorporate it in a larger universe. Secondly, Disney may hope that the newer versions of the films, whose copyrights will expire much later, might become the definitive version, which would allow for control of the characters’ futures even after the copyrights expire. [6]

Even so, suspicion surrounding a copyright-driven motive is not completely unfounded. In 1998, Disney discreetly pushed for the Copyright Term Extension Act (CTEA), nicknamed the Mickey Mouse Protection Act [7, 8]. This act, signed into law by President Bill Clinton, extended copyright retroactively to life of the author plus 70 years or in instances of corporate authorship to 120 years after creation or 95 years after publication, whichever came first. This act amended the Copyright Act of 1976, which allowed for copyright to last for the life of the author plus 50 years, or in the case of corporate authorship, to last for 75 years. [7]This meant that no works would fall in the public domain between 1999 and 2019. [14]

This act was pertinent for Disney because the copyright for Mickey Mouse, who first appeared in 1928, was set to expire in a few years in 2003 under the Copyright Act of 1976. Had the CTEA not passed, this would have meant that Mickey would have passed into the public domain by now, and he would have been shortly followed by Pluto, Goofy, Bambi, Dumbo, Donald Duck, Snow White, and so on. [8] Instead, the CTEA secured creative and financial exclusivity of these characters for Disney for another twenty years. [8, 9]Without this act, Disney would not have been able to collect fees past 2003 for showing its movies that feature its classic characters, and other companies would have been able to freely use characters in its movies and videos. [8]

As such, Disney—and other supporters like Time Warner and Universal—benefited financially from this act. The Senate Report even cited these financial benefits as justification for the copyright extension. It reads, “[B]y stimulating the creation of new works and providing enhanced economic incentives to preserve existing works, such an extension will enhance the long-term volume, vitality, and accessibility of the public domain.” Further, because the bill now followed the European Union’s directive of copyright protection being equal to the life of the author plus 70 years, the majority opinion believed that the bill would encourage a global trade of works by “ensur[ing]adequate copyright protection for American works in foreign nations and the continued economic benefits of a healthy surplus balance of trade in the exploitation of copyrighted works.”[11]

On the other hand, in the minority opinion cited in the Senate Report, Senator Hank Brown wrote, “Denying open public access to copyrighted works for another 20 years will harm academicians, historians, students, musicians, writers, and other creators who are inspired by the great creative works of the past.” Similarly, Senator Herb Kohl wrote, “The practical consequences of extending any monopoly—whether oil, telephones, or copyrights—are increased prices for consumers … We forget all too often that consumers are injured as a result of the monopoly granted by copyrights.” [11]

These senators were not alone in their opposition to the act. In 2003, Eric Eldred, a literacy advocate and proprietor of the unincorporated Eldritch Press, became the lead plaintiff in Eldred v. Ashcroft, which challenged the constitutionality of the Copyright Term Extension Act. [12, 13]Eldred and his fellow petitioners were in the business of using and republishing works that had fallen into the public domain. They argued that the CTEA violated the First Amendment and the Copyright Clause that permitted Congress “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (Article I, Section 8, Clause 8).To them, Congress had overextended its powers and offered copyright beyond a “limited time.” [14]

However, the Supreme Court decided that Congress had done no such thing. Justice Ruth Bader Ginsburg wrote for the majority opinion (7-2) that “limited” did not mean “inalterable,” as the petitioners argued, but rather “confined within certain bounds.” [14] The court also found that the CTEA did not violate the First Amendment. Ginsburg wrote:

[The CTEA] protects authors’ original expression from unrestricted exploitation. The First Amendment securely protects the freedom to make—or decline to make—one's own speech; it bears less heavily when speakers assert the right to make other people's speeches. When, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary. [15]

Despite the court’s decision, the CTEA still has its critics, who claim that the bill acts against public interest. “There’s no evidence suggesting that a longer term is going to produce any more art, literature,”Chris Sprigman, a legal scholar at the New York University, said the Washington Post. “The only reason to extend the term is to give private benefits to companies like Disney or Time Warner that have valuable properties like Mickey Mouse or famous films.” Further, the act has created another problem of “orphan works,” which occurs when the copyright holder is dead and there are no records to show who has holds the copyright now—meaning. that the public could struggle to access these lesser known works. [9]

As of 2019, works from the 1920s have started to enter the public domain. The copyright for Mickey Mouse will expire in 2024, and other characters are soon to follow. [10, 16] It seems that Disney won’t push for another copyright extension—likely because there would be more public push-back this time—but some argue that Disney could utilize trademark law to protect its rights over Mickey Mouse. Still, even if Disney secures exclusivity of Mickey Mouse through trademark law, the company is unlikely to secure the rights to other characters, such as Tarzan, Winnie-the-Pooh, or any character featured in the recent remakes, whose characters and storylines originated outside of Disney. “Mickey is a different story,” Stephen Carlisle writes. “Mickey is Disney, and vice versa.” [17]

Ultimately, there’s no doubt that Disney is concerned with its older copyrights, but the conspiracy that its recent remakes are to push for copyright extension (again) is inaccurate. What it comes down to is money, just as it did in Disney’s push for copyright extension in 1998. Disney’s remakes have been vastly successful—some even grossing $1 billion at the box office—so it’s no wonder that the company is continuing this remake-trend, even without the possibility of legally extending its older copyrights.

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[1] Rubin, Rebecca. “‘Mulan’ Release Date Postponed Again.” Variety, 26 June 2020, https://variety.com/2020/film/box-office/mulan-release-postponed-coronavirus-disney-1234576142/.

[2] Lattanzio, Ryan. “Disney Postpones ‘Mulan’ Release Date Because of Coronavirus.” Indie Wire, 12 March 2020,https://www.indiewire.com/2020/03/mulan-postponed-disney-coronavirus-1202217192/.

[3] Acuna, Kirsten. “Why Disney Keeps Remaking So Many of Its Animated Movies.” Insider, 16 May 2020,

https://www.insider.com/why-disney-keeps-remaking-animated-movies-2020-5.

[4] Disney released three other remakes/reimaginings prior to the 2010 Alice in Wonderland—The Jungle Book (1994), 101 Dalmatians (1996), and 102 Dalmatians (2002). However, these three movies were not nearly as successful as Alice in Wonderland, whose success kick-started the current onslaught of remakes and reimaginings. See “Why Disney Keeps Remaking So Many of Its Animated Movies.”

[5] The remakes so far include: Maleficent (2014), Cinderella (2015), The Jungle Book (2016), Alice Through the Looking Glass (2016), Pete’s Dragon (2016), Beauty and the Beast (2017), Christopher Robin (2018), Dumbo (2019), Aladdin (2019), The Lion King (2019), Maleficent: Mistress of Evil (2019), Lady and the Tramp (2019). See also “22 Disney Classics Making Live-Action Magic on Screen.”

[6] Bailey, Jonathan. “Why Disney’s Remakes Don’t Extend Its Copyright.” Plagiarism Today, 9 April 2019, https://www.plagiarismtoday.com/2019/04/09/why-disneys-remakes-dont-rest-its-copyright/#:~:text=However%2C%20the%20ones%20published%20after%201923%20are%20still%20protected%20by%20copyright.&text=In%20short%2C%20new%20works%2C%20whether,anything%20with%20the%20original%20movie.

[7] “Copyright Term Extension Act.” Wikipedia, https://en.wikipedia.org/wiki/Copyright_Term_Extension_Act.

[8] Ota, Alan K. “Disney In Washington: The Mouse That Roars.” All Politics: CNN with Time and CQ, 10 August 1998, http://edition.cnn.com/ALLPOLITICS/1998/08/10/cq/disney.html.

[9] Lee, Timothy B. “15 Years ago, Congress Kept Mickey Mouse Out of the Public Domain. Will They Do It Again?” The Washington Post, 25 October 2013, https://www.washingtonpost.com/news/the-switch/wp/2013/10/25/15-years-ago-congress-kept-mickey-mouse-out-of-the-public-domain-will-they-do-it-again/.

[10] Porter, Jon. “After a 20 Year Delay, Works from 1923 Will Finally Enter the Public Domain Tomorrow.” The Verge, 31 December 2018, https://www.theverge.com/2018/12/31/18162933/public-domain-day-2019-the-pilgrim-jacobs-room-charleston-copyright-expiration.

[11] Calendar No. 491: 104TH CONGRESS: Report: SENATE, https://www.copyright.gov/legislation/s-rep104-315.html

[12] “Eric Eldrid.” Wikipedia, https://en.wikipedia.org/wiki/Eric_Eldred.

[13] “Eldred v. Ashcroft - 537 U.S. 186, 123 S. Ct. 769 (2003).” Lexis Nexis, https://www.lexisnexis.com/community/casebrief/p/casebrief-eldred-v-ashcroft.

[14] Hull, Geoffrey P. “Eldred v. Ashcroft (2003).” The First Amendment Encyclopedia, https://www.mtsu.edu/first-amendment/article/252/eldred-v-ashcroft.

[15] “ELDRED et al. v. ASHCROFT, ATTORNEY GENERAL (2003).” Find Law For Legal Professionals, https://caselaw.findlaw.com/us-supreme-court/537/186.html.

[16] Lee, Timothy B. “Why Mickey Mouse’s 1998 copyright extension probably won’t happen again.” ArsTechnica, 8 January 2018, https://arstechnica.com/tech-policy/2018/01/hollywood-says-its-not-planning-another-copyright-extension-push/.

[17] Carlisle, Stephen. “Mickey’s Headed to the Public Domain! But Will He Go Quietly? NOVA Southeastern University, 17 October 2014, http://copyright.nova.edu/mickey-public-domain/

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