How the Mickey Mouse Act Was Had

Before treating of the main subject of our work, a short historical summary of U.S. copyright laws is necessary.

In the United States Constitution, Congress is given the power "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 [copyrights] and Discoveries [patents]". Accordingly, the First Congress under the Constitution passed an act "for the encouragement of learning". The term was 14 years, with a further renewal of 14 years, if the author was still alive at the time.

A new copyright law was passed in 1831. This extended the basic term to 28 years but kept the renewal at 14 years. This also allowed the copyright to be renewed if the author was dead but had left a widow or children.

The copyright laws were consolidated in 1870. The copyright term was not affected.

A major revision of the copyright statutes was passed in 1909. As far as the copyright term is concerned, the renewal was extended to 28 years without affecting the basic term. Also, copyright was renewable even if the author had left no spouse or children.

In 1947, the copyright laws were revised into positive law as Title 17. To understand what this means, a brief explanation of the process for the codification of federal law is required. All "general and permanent" federal laws are contained in the United States Code. Much of it is only "prima facie the law"; what this means is that they are only presumed to be an accurate restatement of the law, and if it can be proved that Congress made a different law that is not included in the relevant part of the US Code, then the different law applies even though it was not in the Code. However, by revising Title 17 into positive law, Congress expressly declared that those contained in Title 17 would be all the copyright laws there were. Any new copyright laws would amend or add to Title 17.

Following the publication of the influential copyright treatise Nimmer on Copyright, a movement began to revise the copyright laws to conform to international norms. As a stopgap measure until a full revision could be effected, acts were passed every year from 1962 to 1976 extending all copyrights that would expire in that year to the end of that year instead. For example, a work written in 1912, and which was renewed in 1940, would normally expire sometime in 1968. But because of Public Law 90-141, it would expire on December 31, 1968 instead. And because of Public Law 90-416, the term so extended would expire on December 31, 1969 instead. And so on and so forth. As such, works published in 1906 or later would "ride the extensions" all the way until they fell under the protection of the Copyright Act of 1976.

Under the Copyright Act of 1976, a dual system for copyrights was adopted. For all works published prior to January 1, 1978, the copyright term would run out 75 years after publication. For all works published after that, it would expire after 50 years have passed since the death of the author. (That is to say, all current expirations still follow the first rule.) No renewal was required or available, and copyright attached automatically by publication, without need for registration, for all works published in or after 1978. Copyrights effective at the time still required renewal, but once renewed they would be subject to the 75-year term. A notice was still required until 1989.

In 1992, an act was passed that automatically renewed all copyrights in effect at the time, which meant all works published in 1964 or later are in copyright now and subject to the 75-year term.

Well, that was quite a slog to get through. So what's this essay about?

This essay is about the Copyright Term Extension Act of 1998, also derisively referred to as the Mickey Mouse Protection Act. By examining official and unofficial records, we will understand the reasons for each side for and against the bill, contrast it with earlier copyright laws, and derive lessons from this movement for our future, when the deleterious effects of the bill are finally wearing off.

Why was this bill even proposed?

It was proposed in response to an EU directive in 1993 that extended all copyrights to life plus 70 years, but provided that works from countries which had shorter terms of protection would not receive the extra protection. This should be how things work, but the media moguls didn't like it one bit!

When was it first proposed?

It was proposed in 1995, as the Copyright Term Extension Act of 1995. The chief reasons that were advanced in its favor were that it was necessary to harmonize American copyright laws with newly amended European ones, and to protect the children and grandchildren of content creators.