The Public Domain Trapped by the Mouse: Walt Disney and Ramifications of the Copyright Term Extension Act

Seung-Hwan Mun Doctoral student

Department of Radio-Television-Film The University of Texas at Austin

Austin, TX 78712 Phone: (512) 461-0473

Email: shmun@mail.utexas.edu

Submitted to the Communication Law and Policy Division The 2004 Annual Conference of the International Communication Association

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The Public Domain Trapped by the Mouse: Walt Disney and Ramifications of the Copyright Term Extension Act

Abstract

This paper examines potential ramifications of the Copyright Term Extension Act. As

much mainstream media coverage of the CTEA and Eldred v. Ashcroft case has centered

on Disney’s stake in the issue, this paper first provides a quick overview of judicial

conflicts of the Eldred case, and uncovers Disney’s maneuvering and lobbying before

Congress during the legislative procedure. This paper, then, investigates why the CTEA

turns out legal inconsistencies with the public domain by focusing on Disney’s animated

films. With respect to Disney’s synergistic market power based on copyright control over

its animated films, this paper focuses on how Disney animations, as copyrighted works,

are created, marketed, and recycled. By tracking their original resources in the public

domain or derivative works and the company’s copyright control over the materials, this

paper raises questions concerning the widely accepted proposition that strong copyright

protection such as the CTEA motivates our creativity and cultural expression. From the

analysis, this paper concludes that the CTEA is an unfair tradeoff between copyright

holders’ private interests and the public interest.

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“Mickey Mouse is no longer a mere icon of popular culture. Rather he is a symbol of corporate greed and a cause of public domain activists” – Peter K. Yu, assistant professor of law at Benjamin N. Cardozo School of Law, Yeshiva University1

I. Introduction On January 15, 2003, by a vote of 7-2, the Supreme Court in Eldred v. Ashcroft upheld

the constitutionality of the Copyright Term Extension Act (CTEA) as known as the

Sonny Bono Copyright Term Extension Act. The CTEA extended the term of protection

by 20 years for works copyrighted after 1923. Works copyrighted by individuals since

1978 are now protected for the author’s life plus 70 years, and works made by

corporations (works for hire) are protected for 95 years.2 As Stanford Law professor

Lawrence Lessig, who represented the plaintiffs in the case, termed the CTEA the

“Mickey Mouse Protection Act,” the decision was a cheerful victory of the Walt Disney

Corporation because the company had faced the expiration of Mickey Mouse copyrights

in 2003. Without the CTEA, Mickey Mouse would have entered the public domain in

2004. Beginning with Mickey Mouse, Pluto is due to expire in 2006, Goofy in 2008, and

Donald duck in 2009 (Farid, 2003; Springman, 2002; Clark, 2002; Gilmore, 2002). Faced

with the clock ticked toward copyright expirations, the company began an aggressive

lobbying campaign for the extension of copyright term. At last, Disney’s efforts were

rewarded by the decision in Eldred v. Ashcroft. As a result of the decision, any

copyrighted works, including Mickey Mouse and his friends, will remain locked up for

1 Yu, P. K. (2002). Freeing the Mouse. IP Worldwide. Oct. p.27. 2 The term of copyright protection under the 1976 Act was 50 years past the death of the individual author (75 years after publication for work-for-hire).

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another 20 years, which means, for the first time in our history, there will be no

copyrighted works to enter the public domain until 2018.

Perhaps, the most ironic controversy in the decision is the fact that the creation of

Mickey Mouse in Steamboat Willie (1928) was in fact borrowed from works in the public

domain.3 According to Walker (2003), the short was a parody of Buster Keaton’s

Steamboat Bill, Jr. Besides Mickey Mouse, many of Disney’s animated films are based

on the 19th century public domain works, including Snow White and the Seven Dwarfs,

Pinocchio, Cinderella, Alice in Wonderland, The Hunchback of Norte Dame, and so on.

While the Disney Corporation stands at the forefront of strengthening copyright

protection, it has drawn great benefits from the public domain. While profound creativity

requires sufficient exposure to others’ works and substantial freedom to reuse them

(Vaidhyanathan, 2001; Lessig, 2001), the aggressive copyright regime such as the CTEA

has allowed giant media conglomerates like Disney to monopolize our creativity.

This paper examines potential ramifications of the Eldred decision through the

lens of Disney. A substantial number of scholars recognize that the contemporary

paradigm of copyright laws is shaped by private media corporations (Bettig, 1997;

Vaidhyanathan, 2001; Litman, 2001; Boyle, 2001). As much mainstream media coverage

of the CTEA and the Eldred case has centered on Disney’s stake in the issue,

understanding Disney surrounding the CTEA and the Eldred case is the best way to

investigate how current copyright laws contribute to corporate capital accumulation at the

expense of the social good. As background, this paper first provides a quick overview of

judicial conflicts of the Eldred case, and uncovers Disney’s maneuvering and lobbying

3 For detailed information about Mickey Mouse and its copyrights, see Vanpelt, L. (1999). Mickey Mouse –A Truly Public Character. Available at: http://www.law.asu.edu/HomePages/Karjala/OpposingCopyrightExtension/publicdomain/Vanpelt-s99.html

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before Congress during the legislative procedure. This paper, then, investigates why the

CTEA turns out legal inconsistencies with the public domain. In order to accomplish this,

this paper focuses on Disney animations. According to The Global Disney Audience

Project studied by Wasko, Philips and Meehan, the wide recognition of the Disney

animation has played important roles in the popular culture of many countries since the

1930s (Phillips, 2001; Wasko & Meehan, 2001). In terms of copyrights, the Disney

animation can be exploited through films, broadcast, cable television, publishing, theme

parks, music, merchandising and the Internet. Exploitation based upon copyrights

produces both a stream of revenue and further strengthening each animation’s

commercial values. Considering Disney’s synergistic power derived from copyright

control over its animated films, this paper examines how Disney animations, as

copyrighted works, are created, marketed, and recycled. By tracking their origins and the

company’s copyright control over the materials, this paper raises questions concerning

the widely accepted proposition that strong copyright protection such as the CTEA

motivates our creativity and cultural expression. From the findings, this paper argues that

the CTEA is an unfair tradeoff between copyright holders’ private interests and the public

interest.

II. Background A. Eldred v. Ashcroft

The CTEA extended the term of all copyrights for a period of 20 years. Eric Eldred, a

publisher of HTML books based upon public domain materials, brought suit to contest

the CTEA by arguing that the CTEA unconstitutionally prevented a copyrighted material

from entering the public domain. The petitioners alleged that the CTEA violated the

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Copyright Clause of the U.S. Constitution—Article I, section 8, clause 8 of the

Constitution stating that Congress shall have power “[t]o 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.” Specifically, the plaintiffs argued

that a retroactive extension of the Act violated the “limited Times” term of the Copyright

Clause because a “limited Time” for copyright protection necessarily had to promote the

“Progress of Science and useful Arts.” In other words, an author must provide the public

something (the “Progress of Science and useful Arts”) to earn a grant of exclusive rights

from Congress. Because already existing works cannot be created anew, extension of

substituting copyrights does not promote anything, argued the plaintiffs, Congress

exceeded its enumerated power by disregarding the “limited Time” requirement under the

Copyright Clause.4

There are so many leading scholars of intellectual property law who interpret the

plaintiffs’ arguments as the constitutional requirement to preserve a rich public domain

(Besser, 1999; Litman, 2001; Herrington, 1998; Lessig, 2001; Farid, 2003). Based on an

economic-utilitarian approach to copyright laws, they argue the U.S. copyright law was

originally created as a bargain in which the public grant limited exclusive rights to

authors as a means to promote the public good by encouraging the production and

distribution of information. As the Copyright Clause demonstrates that the granting of

copyrights is driven by the goal of enhancing public welfare, the public domain, which

furnishes the raw material for the creation of new works, is one of the most important

aspects of the law. Following these arguments, they suggest that the Copyright Clause

4 For example, the plaintiffs argued, “[n]o matter what we offer Hawthorne or Hemingway or Gershwin, they will not produce anything more” (Petitioners' Brief, supra note 34, 4-5).

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enshrine a quid pro quo theory (i.e., an author must give the public something new in

exchange for copyright protection). Therefore, the CTEA is unconstitutional since

without any compensation for the public, Congress cannot take something from the

public domain in order to make the exclusive private rights. Correspondingly, in his

dissent of the Eldred case, Justice Breyer argued that the CTEA would be deemed

unconstitutional because its primary benefits were private, not public. As another

dissenter, Justice Stevens also emphasized that the overriding purpose of the

constitutional provisions is ultimate public access to material, including the public

domain (Farid, 2003; Schwartz & Treanor, 2003).

Against the CTEA, both the plaintiffs and several legal scholars agree upon the

necessity of a plentiful public domain (Benkler, 1999; Boiler, 2001; Boyle, 2001; Lessig,

2001; Samuelson, 2001; Vaidhyanathan, 2001). In their argument, the public domain

serves two important functions related to copyright. First, it allows the public as

consumers of copyrighted works to enjoy works at a lower cost. Second, a rich public

domain also assists the public as authors by furnishing the raw material for their new

works. Thus, copyright extension that starves the public domain limits the production of

creative works by constraining author’s ability to draw on precedent works. For them, the

ultimate goal of copyright is to encourage both the creation of works and their

dissemination. Therefore, the CTEA not only hurts the public domain, but also

discourages the creation and dissemination of socially valuable information.

The majority opinion in the Court, however, did not address the issue of the

public domain, but instead stressed Congress’s role in deciding whether copyright

legislation would further the ends of the Copyright Clause (Patry, 2003). Basically, the

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Court took a very ‘hands-off approach’ to review the constitutionality of the CTEA. For a

majority opinion, Justice Ginsburg wrote, “[i]t is generally for Congress, not the Courts,

to decide how best to pursue the Copyright Clause’s objectives.”5 Thus the Copyright

Clause, so called the Preamble, is not a substantive limit on Congress’s legislative power,

and even if it was, the CTEA was within this limited power. With respect to the

retroactive nature of the extension, the Court also dismissed the petitioners’ view. In fact,

admitting that the CTEA is unconstitutional due to the retroactive nature theoretically

could undermine all earlier copyright laws. Unfortunately, the CTEA is not the first one

to extend copyright terms. For example, previous extensions were granted 1831, 1909,

and 1976. In fact, Congress has lengthened the copyright duration over ten times in the

last forty years (Clark, 2002). Other than the public domain argument or a quid pro quo

theory, a key factor to assent the CTEA in the majority opinion was international

justifications: the harmonization of U.S. law with European copyright. Since the 1993

E.U. Copyright Term Directive required all member countries to extend their copyright

terms for 20 years, the Court justified the ruling by citing that an initial legitimate basis

for the CTEA was the harmonization of U.S. law with European copyright.

With respect to copyright harmonization, however, the opposite is true. As Justice

Breyer pointed out in his dissent, the U.S. and the E.U. had coexisted for some time

without difficulty, regardless their key differences. Even under the CTEA, the U.S. and

the E.U. now provide different copyright terms for a large number of works, including

works-made-for-hire, pre-1978 works, and sound recordings (Yu, 2003). For example, in

the U.S., sound recordings are deemed works-made-for-hire and are protected for 95

years under the CTEA. On the other hand, the E.U. Directive protects sound recordings

5 Eldred v. Ashcroft, 123 S. Ct. 781 (2003).

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for only 50 years. As Karjala (2002) explains, since the E.U. Directive extended

copyright terms for only works created by individual authors—not works-made-for-hire,

what the CTEA accomplished in the way of harmonization, in fact, is more conflicts.6

B. Disney and the CTEA As Boyle (1997: 3) states, “[i]n the United States, copyright has been described as the

most technically perfect example of “industry capture” of the legislative process,

Disney’s notorious lobby toward the CTEA provides a question of ‘transparency’ in

copyright law-making and enforcement. Throughout the history of copyright law

revisions, Congress has continued to rely on meetings and negotiations among interested

parties. The legislation written by multiparty negotiation tends to be in favor of the status

quo and hostile to the public (Litman, 2001; Lessig, 1999, Vaidhyanathan, 2001). Seen in

this light, the CTEA is the product of a legislative process skewed toward corporate

interests, which can be represented by Disney’s lobby.

In the early 1990s, as the clock was ticked toward copyright expirations of

Mickey Mouse and several other characters holding enormous commercial values, the

company’s goal of copyright extension became obvious. For example, in 1998, the

company’s consumer products division, including Mickey Mouse merchandise, was

expected to have almost $1 billion in operating income on $3.8 billion in sales. Also,

Disney’s theme parks, which feature its characters, were expected to make more than $1

billion. Together, the two divisions were expected to account for more than two-fifths of

6 For additional information about different terms between the U.S. and the E.U., see Karjala. D. S. (2002). Harmonization Chart Between U.S. and E.U. After Adoption of the Sonny Bono Copyright Term Extension Act, available at: http://www.law.asu.edu/HomePages/Karjala/OpposingCopyrightExtension/legmats/ HarmonizationChartDSK.html

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Disney’s 1998 income (Berenson, 1998). Fearing revenue loss due to copyright

expirations, Disney has become the most aggressive advocate of expanded copyright

protection.

Since the 1990s, Disney, along with other big entertainment companies, has

pushed lawmakers to extend its copyright protection. Motion picture, television, and

recording studios and their parent companies have contributed $6.5 million to federal

candidates and parties in the 1997-1998 election cycle. While half the money came from

four of Hollywood’s dominant interest such as Universal Studios, News Corporations,

Time Warner and Walt Disney, Disney took a leading role in pushing for HR2589 and

S505—initial bills of the CTEA in the 105th Congress (Shecter, 1998). According to

Congressional Quarterly, a week after an informal meeting with Disney CEO Michael

Eisner on June 9, 1988, Senate Majority Leader Trent Lott (R-Miss) signed on as a co-

sponsor to copyright extension legislation. Strangely (or obviously) enough, on the very

day Disney’s political action committee made a $1,000 contribution to Lott’s campaign

committee (Shecter, 1998; Ota, 1998a). The same Disney committee also gave $20,000 to

the National Republican Senatorial Committee. Other recipients of campaign money

include members of key committees such as Sen. Patrick J. Leahy, D-Vt., a family friend

of Eisner and ranking Democrat on the Judiciary Committee, and Rep. Howard Coble, R-

N.C., chairman of the Judiciary Subcommittee on Arts and Intellectual Property, which

oversees copyright issues. Disney has contributed nearly $800,000 to political campaigns

in the 1997-98 cycle (Ota, 1998; 1998a). According to the Center for Responsive Politics,

10 House co-sponsors of the copyright bill received money from Disney (Newmyer,

1999).

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Meanwhile, the legislative procedures of the CTEA had an absolute lack of

Congressional floor debate exploring concerns over the extension of copyright term.

Public hearings concerning the CTEA primarily consisted of industry lobbyists who

stood to financially benefit from the Act. Not to mention Disney, most hearings heard

testimony from representatives of preferred industries, including the Motion Picture

Association of America, the American Society of Composers, Authors, and Publishers,

and the National Music Publishers’ Association, and Video Software Dealers Association

(Harney, 2002). Especially, with the nation surrounded by the Lewinsky morass, the

legislation, receiving scant media attention, was slipped from public awareness

(Newmyer, 1999).

In sum, while the Eldred decision still remains controversial, Disney’s lobbying

raises a question about the legislation and enforcement of the CTEA. In the following

part, this paper will explain an irony of Disney, which is the company has been the most

famous beneficiary of the public domain, but at the same time, the most notorious

betrayer of the public domain. The company has made its own copyrighted versions of

publicly available resources, and then locked them under the CTEA.

III. Tracking Disney’s Creativity

A. Disney Animations7 and the Public Domain

Examining the creative roots of the Disney Empire, Allan (1999) argues that the early

animated feature films were influenced by a European inheritance of literature, graphic,

7 This study considered 42 animated feature films directly produced by the Disney Studio, not short films, direct-to-video films, and other works done by Pixar Animation Studios. Most information about those films in the study was adopted from various resources such as encyclopedias, online materials, and Disney Archive on the company’s Website.

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and illustrative art, music, and design as well as indigenous cinema. Seven out of

Disney’s first 8 films, for instance, were based on European folk tales (Allan, 1999). Walt

Disney, founder of the Disney Studio, was a master of technological and cultural

manipulation, taking stories, characters, style, mood and themes from the public domain,

and recreating them in an animated form. The influences of the public domain were

profound in his animated feature films, from the original story to the character design and

musical score. Snow White and the Seven Dwarfs (1937), Disney’s first animated feature

film, was based on the tale as told by the Brothers Grimm in Germany. For a while after

its release, the film became the highest grossing motion picture of all time, until finally

surpassed by Gone with the Wind a couple of years later. The second feature film

Pinocchio (1940) came from another work in the public domain that is the original serial

story of Italian author and journalist Carlo Collodi and its original illustration by Eugenio

Mazzanti in 1883. Due to the popularity of the original story appeared in the Giornale dei

bambini, the book was quickly translated into English, appearing in America in 1892,

which was adopted by Walt Disney (Allan, 1999).

With the huge success of the first two films which earned $81 and $84.2 million

in the U.S., Disney came to recognize how already-popular literary and artistic sources in

the public domain are absorbed and recreated for American mass audiences in a wide

variety of styles. Disney’s willingness to absorb, experiment and explore a wide range of

popular resources under the public domain (mostly European) continued in its third

feature film Fantasia (1940). In the film, Disney set animated pictures to classical music

composed by J.S. Bach, Tchaikovsky, Stravinsky, Beethoven, Mussorgsky, and Schubert.

All these music came from the public domain in Europe, but also so much of the imagery

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and style of the design (Allan, 1999). When Fantasia was first released in Europe in 1946,

critics pointed out the film’s debt to Blanc-Gatti’s previous works that inspired the film in

various ways.8 One of those critics wrote, “[f]or the most part, the ideas, forms and

characters of Fantasia have been taken from a catalogue of an exhibition of musical

painters in Paris in 1932” (Allan, 1999: 110).

Encouraged by the continuous success of the first three films, Disney attempted to

create his version of old fairy tales from the public domain. During the 1940s, financial

problems owing to the Second World War prevented Disney from finding enough money

to create a full animated feature. Thus Disney released various animation/live-action

feature films consisting of a group of sequences, and many of the individual sequences

were adopted from a wide range of works in the public domain. Disney’s 8th animation

Make Mine Music (1946) used Peter and the Wolf, the classic folk tale by Sergei

Prokofiev with several classic opera scores such as Donizetti’s Lucia di Lammermoor,

and Rossini’s Barber of Seville. Similarly, Fun and Fancy Tree (1947) was created as

Disney’s version of Jack and the Beanstalk,9 featuring Mickey, Donald and Goofy in the

main roles. Also, The Adventure of Ichabod Crane and Mr. Toad (1949) was made of a

concise version of Scottish author Kenneth Grahame’s story of The Wind in the Willows

and the re-telling of Washington Irving’s book The Legend of Sleepy Hollow (Smith,

1998).

8 Blan-Gatti (1890-1966) was an abstract artist and color music performer. His paintings were praised at the first Artistes Musicalistes show in Paris in December 1932, and then toured Europe and Japan (Allan, 1999). 9 The original story appeared in two different publications: The History of Mother Twaddle and the Marvelous Achievement of Her Son Jack, and The History of Jack and the Bean-Stalk in 1807 (Opie & Opie, 1974). See also Thompson (1946).

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After recovering from its deep wartime economic problems, the Disney Studio in

the 1950s stopped producing package films and resumed to produce full-length

animations. During the decade, Disney aggressively endeavored to develop a feature

based on a largely original story in the public domain such as Cinderella (1950), Alice in

Wonderland (1951)10, and Sleeping Beauty (1959). Cinderella and Sleeping Beauty were

borrowed from French author Charles Perrault’s original classic tales, which were

Cendrillon and Contes du temps passé respectively, and similar tales also appeared in the

Brothers Grimm’s fairy tale. Disney took not only its original story but also the aesthetic

resources such as architecture and costumes from the public domain. For example, as

teams of designers in the Disney Studio intensively studied famous European palaces and

castles, the basic architecture of the castle in Cinderella where the Prince Charming lives

is directly inspired by Neuschwanstein palace (where Louis II of Baviere lived).

Cindrella’s success gave Disney increased confidence and contributed to his subsequent

businesses: the creation of ‘Disneyland,’ amusement park and manipulation of television

as a means of purveying its products (Allan, 1999; Wasko, 2001a). Again, already-

released animations and their original resources in the public domain were shifted into

the following businesses. For example, the castle in Cinderella (so called ‘Cinderella

Castle’) was reproduced as the entrance to Fantasyland in the Magic Kingdom at Walt

Disney World. Likewise, ‘Sleeping Beauty Castle’ was built for Disneyland. Moreover,

as Disney is often acknowledged as the first executive in Hollywood to recognize the

potential of television (Wasko, 1999a), in the 1950s, many of his early works were aired

on NBC weekly series Disneyland / Walt Disney’s Wonderful World of Color. Recently,

Cinderella’s new version (feature film for TV), starring Brandy, Whitney Houston and

10 The original story was adopted from Lewis book “Alice’s Adventures in Wonderland” (1865).

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Whoopi Goldberg, was remade and aired on The Wonderful World of Disney in 1997

(Smith, 1998).

Table 1. Disney Animations from the Public Domain Films Year Original resources in the public domain Snow White and the Seven Dwarfs

1937 Fairy tale by the Brothers Grimm

Pinocchio 1940 Original story by Carolo Collodi Fantasia 1940 Musical compositions by J.S Bach, Tchaikovsky, etc.

Make Mine Music 1946 Musical scores by Donizetti, Rossini, etc. folktale “Peter and the Wolf”

Fun and Fancy Tree 1947 “Bongo” by Sinclair Lewis Folktale “Jack and the Beanstalk”

The Adventure of Ichabod Crane and Mr. Toad

1949 “The Legend of Sleepy Hollow” by Washington Irving “The Wind in the Willows “ by Kenneth Grahame

Cinderella 1950 Classic tale by Charles Perrault Alice in Wonderland 1951 “Alice’s Adventures in Wonderland” by Lewis Carroll Sleeping Beauty 1959 “Contes du temps passé” by Charles Perrault The Jungle Book 1967 Original book by Rudyard Kipling Robin Hood 1973 British legend and folktale Oliver and Company 1988 “Oliver Twist” by Charles Dickens The Little Mermaid 1989 Classic tales by Hans Christian Anderson The Rescuers Down Under 1990 Original book by Margery Sharp Beauty and the Beast 1991 Classic tale by Madame Gabrielle de Villeneuve Aladdin 1992 The Book of the Thousand and One Nights, etc. The Lion King 1994 William Shakespeare Pocahontas 1995 Euro-American legend The Hunchback of Norte Dame 1996 Original novel by Victor Hugo Hercules 1997 Greek mythology Mulan 1998 Chinese folktale Tarzan 1999 “Tarzan of the Apes” by Edgar Rice Burroughs Fantasia 2000 1999 Musical compositions by Beethoven, Shostakovich, etc. Atlantis: The Lost Empire 2001 Legend told by Plato Treasure Planet 2002 “Treasure Island” by Robert Louis Stevenson

Source: collected and edited by the author

Since the end of Disney’s life in 1966, the Disney Studio had been not a creative

presence in animation genre, producing only 6 animated films until Michael Eisner

became CEO in 1984 (Phillips, 2001). As had been the case with animated films in the

Disney’s era, adopting a popular story from the public domain was common. During the

time, one noticeable thing was the biggest hit animation The Jungle Book, which came to

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the screen in 1967—exactly one year after its original author Rudyard Kipling’s

copyright expired and entered the public domain.

It was Michael Eisner who brought to an end the torpidity of the company after

the death of Disney and established the second golden age of Disney animation built

upon the public domain. Since led by CEO Eisner, the Disney Studio has produced 18

theatrical feature animations. Around 70 percent of them (12 films) were based upon the

public domain. Surprisingly, from Oliver & Company (1988) to Fantasia 2000 (1999),

the Disney Studio have been heavily dependent upon the public domain to create 12 films

in a row (except only one movie The Rescuers Down Under (1990) which was the sequel

of the 1977 Disney animated feature The Rescuers).

Drawing inspiration from Charles Dickens’s Oliver Twist (1838), Oliver &

Company (1988) marked the start of an aggressive new effort to revitalize the feature

animation market by reproducing popular stories from the public domain. Subsequently,

The Little Mermaid (1989) was derived from the original story of Danish writer Hans

Christian Anderson (1805-1875) who was famous for his fairy tales so that Walt Disney

already considered as the subject for feature films since the late 1930s. The following hit

Beauty and the Beast (1991) was based upon one of the best known stories in the world.

While variants of the story can be found in different cultures, the first version of Beauty

and the Beast appeared in 1740 by Madame Gabrielle de Villeneuve who wrote a 362

page version of the story which appeared in La jeune ameriquaine, et les contes marins.

Then Disney’s intense search for resources in the public domain even more

expanded its scope. For example, Disney widely took advantage of a collection of

Eastern folk tales dating back over a thousand years (e.g., the Book of the Thousand and

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One Nights, the adventures of Sinbad and the Sailor, and Ali Baba and the Forty Thieves)

for Aladdin (1992); Shakespeare’s play Hamlet for The Lion King (1994); the historical

legend of Euro-American for Pocahontas (1995); Victor Hugo’s epic novel for The

Hunchback of Norte Dame (1996); and Greek myths for Hercules (1997). These original

works in the public domain contributed to Disney’s creativity not only as original

storylines but also as a wide range of key elements to construct the details. For example,

Sean Mitchell, director of Marketing of Hercules states, “[w]e’ve got that whole Greek

motif to work with … There are so many icons—Greek flowers and urns, columns and

temples, swords and musical instruments. We take these classic icons and, essentially, put

them through a ‘fun filter’ to translate to product in a very entertaining way” (Wasko,

2001: 61).

Since the mid-1990s, Disney extensively made the most use of the public domain.

Its chronological scope became so wide: from truly ancient works for Mulan (1998)

based on a Chinese folktale dating back to 300 BC to just-copyright-expired works like

Edgar Rice Burrough’s “Tarzan of the Apes” for Tarzan released in 1999 (Chan, 2002;

Burrough, 2000). At the same time, its spatial range was also enlarged: from Europe (e.g.,

The Beauty and the Beast, The Hunchback…, Hercules, etc.) to Mid-East and Asia (e.g.,

Aladdin and Mulan). In addition to old stories across time and space, the company

utilized other artistic genres in the public domain, including music, paintings, sculpture,

choreograph, and cinematography. All kinds of literary and artistic resources were freely

adopted and reproduced with Disney’s financial capital and technology. For example, in

Fantasia 2000 (1999), Disney animators and filmmakers visually interpreted classical

compositions by Beethoven, Shostakovich, Saint-Saëns, Elgar, and Stravinsky. Moreover,

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as this new version of Fantasia combined all the latest technological tools and

innovations in filmmaking with classic music, Disney’s most recent two feature

animations—Atlantis: The Lost Empire (2001) and Treasure Planet (2002) transformed

the original story—the legend of Atlantis told by Plato around BC 360 and the 1881

Scottish novel “Treasure Island”—into sci-fi adventures with state-of-the-art technologies.

B. Disney Animations and Derivative Works

While many of his animations heavily depended upon the public domain, people still

remember Walt Disney as the ‘great man’ with a full of creativity shown in other

animated films and characters. However, the ‘great man’ of creativity seems to be a myth

when we pay attention to how the Disney Company took advantage of derivative works.11

In fact, only 4 out of 42 Disney animations were truly original works of the Disney

Studio. More than half of them (25 out of 42) were directly created from the public

domain, and the other 13 animations were derivative works. Famous characters of Disney

animations such as Bambi, Dumbo, Peter Pan, 101 Dalmatians, and Winnie the Pooh,

which people may believe what Disney created, are derived from his predecessor of the

original stories, not from Walt Disney himself.

Disney’s 4th animation Dumbo (1941) was adopted from the 1939 illustrated book

“Dumbo, the Flying Elephant” by Helen Mayer and Harold Pearl (Pace, 1999). Also,

Felix Salten’s novel “Bambi, A Life in the Woods” (1923) and its illustration by Harold

Pearl was the basis for the 1942 animation film by Walt Disney. In 1933 certain rights to

the book were assigned to Sidney Franklin who later assigned his rights to Walt Disney

11 A great deal of recent scholarship has been devoted to the exploration of the popularization and then persistence of a ‘romantic conception of authorship’ which had a powerful impact on American copyright law. For further information, see Boyle (1996); Sussman (1997); Aoki, (1994).

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in 1937. As a result, while Disney enjoyed notable success from the film and other

products based on Salten’s story, the tremendous success brought Salten little financial

gain (Dormer, 1991). Likewise, in 1939 Walt Disney acquired the film rights to Peter

Pan (1935) from the Great Ormond Street Hospital in London to which the original

creator Sir James M. Barrie awarded his copyright to “Peter Pan, or The Boy Who Would

Not Grow Up.” To follow the remarkable success of Peter Pan which earned $87.4

million of U.S. gross, Disney continued to acquire the rights to various familiar novels

for later production (Smith, 1998). For instance, Disney produced two box-office hits The

One Hundred and One Dalmatians (1961) and The Sword in the Stone (1963) based on

modern British classic novels by Dodie Smith and T.H. White respectively. Especially,

Disney acquired the rights to T.H. White’s novel in 1939 (the year after the book’s

publication), but he had been waiting to develop the film from the novel until it was well

known enough to warrant the film’s success. When the smash Broadway musical

Camelot opened in 1960 (based on White’s complete cycle of the novel), Disney finally

began to develop the story in earnest.

Derivative works became more apparent during the company’s slump in

animations—the period between Disney’s death and the late 1980s as discussed above.

During the time, the Disney Studio was only releasing one animated film approximately

per four years. Rather than new works, the studio focused on re-releases of their classics.

Thus the studio’s most potentials during the period came from the screen rights to a

variety of novels, including A.A. Milne’s original works for The Many Adventure of the

Pooh (1977), Margery Sharp’s two books “The Rescuers” and “Miss Bianca” for The

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Rescuers (1977), Danniel P. Mannix’s book for The Fox and the Hound (1981), and

Lloyd Alexander’s “The Chronicles of Prydain” for The Black Cauldron (1985).

Table 2. Disney Animations from Derivative Works Films Year Original resources Dumbo 1941 Original book and illustration by Helen Mayer & Harold Pearl Bambi 1942 Original story by Felix Salten Melody Time 1948 Poem “Tree” by Joyce Kilmer Peter Pan 1953 Original play by Sir James M. Barrie Lady and the Tramp 1955 “Happy Dan, the Whistling Dog” by Ward Greene 101 Dalmatians 1961 Original book by Dodie Smith The Sword in the Stone 1963 Original book by T.H White The Aristocats 1970 Original story by Tom McGowan & Tom Rowe The Many Adventure of the Pooh

1977 Original story & character by A.A. Milne

The Rescuers 1977 Original book by Margery Sharp The Fox and the Hound 1981 Original story by Daniel P. Mannix The Black Cauldron 1985 Original book by Lloyd Alexander The Great Mouse Detective 1986 “Basil of Baker Street” by Eve Titus

Source: collected and edited by the author

C. Repackaging / Recycling As public domain materials and derivative works have been crucial to the Disney

animations, it is not so much the company’s own creativity as exploitation of its

copyrights with a cross-promotional strategy that generates a stream of revenue and

reinforces the company’s market power. From the beginning of its foundation, control

over intellectual property rights has been one of the most important business strategies of

Disney. As early as 1936, the company granted over 70 licenses to various companies to

produce a wide range of items, including clothing, toys, books, phonograph records, and

sheet music. By recycling and repackaging, Disney persistently has exploited its

intellectual property, which has been grown with ever-increasing media outlets.

First, Disney has been recycling its animated films through theatrical re-release

and video sales/rentals. Most of the animations have been regularly reissued in theaters

with 6 to 8 years cycle. In addition, Buena Vista Home Entertainment, one of Disney’s

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branches, has distributed its animations in video and DVD format. In fact, Buena Vista

Home Entertainment has been the top video company in the U.S. (in fact, it is twice the

size of its nearest rival in the sell-through business). The company owns all except one of

the industry’s top-ten best-selling videos in the U.S. and all of the top-ten best-selling

international titles, led for many years by The Lion King (Wasko, 2001b).

Disney’s recycling/repackaging of its animations was dramatically accelerated in

the mid-1950s when the company opened Disneyland. According to Gomery (1994), the

Disney Company originally had been a marginal, niche Hollywood studio, but with the

success of Disneyland, the company finally turned into a theme-park company. The

theme park has been an efficient business tool to recycle/repackage previously created

animations, characters, stories and images as the basis for its attractions. Disney has been

especially successful in exploiting its animation library, carefully reproducing already

amortized animations in new forms for the theme park: for example, attraction, stage

show, parade, ride, fast-food facility, and dinner theater in Disneyland. Almost all

segments of its copyrighted animations (characters, images, architecture, and storylines)

are ‘themed’ to the park allowing limitless opportunities to recycle intellectual property

rights (See Table 3).

With corporate mergers and acquisitions, especially during the 1990s, the Walt

Disney Company now is not only specialized in children’s entertainment but a media

empire with holdings in broadcast, cable networks, theme parks, and professional sport

teams. Especially, the dramatic $19 billion takeover of Capital Cities/ABC in 1995

reflects the company’s desire to control the full range of multimedia products under the

company’s intellectual property rights (Wasko, 2001a). Set by CEO Michael Eisner,

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‘Team Disney’ imported the term ‘synergy’ to repackage and recycle its intellectual

property to feed its various media operations, which ultimately aimed at seamless market

expansion. For example, the primary role of ‘Team Disney’ was to revive the classic

Disney animation and to modernize some of old Disney characters (Wasko, 2001b). For

example, built upon its 1940 predecessor, Fantasia 2000 returned in time for the

millennium with the latest technological tools and innovations to tell the same story.

Disney’s quest to recycle its classics into remakes/sequels has persistently continued in

various formats: The Rescuers Down Under (1990), sequel of The Rescuers; The Jungle

Book Reunion, syndicated television special aired in 1990; a Broadway musical version

of Beauty and the Beast in 1994; The Lion King’s Timon & Pumbaa (1995), animated

television series aired on CBS; 101 Dalmatians: The Series, animated television series on

ABC in 1997; Oliver Twist, television movie appeared on The Wonderful World of

Disney in 1997; The Tigger Movie (2000), the Winnie the Pooh movie with the leading

role for ‘Tigger’; and Peter Pan: Return to Never Land (2002).

The company, now one of the three largest media firms in the world, has

persistently expanded its market power across a growing number of media outlets by

‘creating a cross-promotional dynamic or synergy’ (Wasko, 2001: 57). A multitude of

products are produced by a wide range of licenses. Licensed characters become the center

of an infinite array of interlocking marketing schemes. As Wasko (2001b: 18) recognizes,

since the 1990s, Disney’s control over “a multitude of [its] products in a wide range of

distribution channels all over the world has contributed to a proliferation of Disney

images and characters that could hardly have been imagined in the 1930s.”

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Table 3. Recycling/Repackaging of Disney Animations Films Theatrical Rerelease Video Others Snow White and the Seven Dwarfs (1937)

1944, 1952, 1958, 1967, 1975, 1983, 1993

1994 Snow White’s Adventures (Disneyland)

Pinocchio (1940) 1945, 1954, 1962, 1971, 1978, 1984, 1992

1985, 1993

Pinocchio’s Daring Journey (Disneyland)

Fantasia (1940) 1946, 1956, 1963, 1969, 1977, 1982, 1990

1991 The sequel Fantasia 2000 in 1999

Dumbo (1941) 1949, 1959, 1972, 1976

1981 Dumbo Flying Elephant (Dinseyland) Dumbo’s Circus (TV series) Dumbo’s Circus Parade (Disney World)

Cinderella (1950) 1957, 1965, 1973, 1981, 1987

1988, 1995

Cinderella Castle (Disney World) Cinderella’s Golden Carrousel (Disneyland)

Peter Pan (1953) 1958, 1969, 1976, 1982 1989

1990 Peter Pan’s Flight (Disneyland/Disney World)

Sleeping Beauty (1959)

1970, 1979, 1986 1986, 1997

Sleeping Beauty Castle (Disneyland)

101 Dalmatians (1961)

N/A N/A 101 Dalmatians (animated TV series) 101 Dalmatians (live action film)

The Sword in the Stone (1963)

1972, 1983 1986 The Sword in the Stone Ceremony (Disneyland/Disney World)

The Jungle Book (1967)

1978, 1984, 1990 1991 The Jungle Book Reunion (TV special)

Oliver and Company (1988)

1996 1996 Oliver Twist (TV special)

The Little Mermaid (1989)

1997 1990, 1997

The Little Mermaid (animated TV series)

Beauty and the Beast (1991)

N/A 1992 Beauty and the Beast (Broadway show) Beauty and the Beast: the Enchanted Christmas (direct-to-video animated feature)

Aladdin (1992) N/A 1993

The Return of Jafar/Aladdin and the King of Thieves (direct-to-video sequels) Aladdin (animated TV series) Aladdin on Ice (TV special) Aladdin’s Royal Caravan (Disneyland/Disney-MGM Studios)

The Lion King (1994)

N/A 1995

The Lion King Celebration (Disneyland) The Lion King’s Timon & Pumbaa (animated TV series) The Lion King (Broadway show) The Lion King 2 (direct-to-video sequel)

The Hunchback of Norte Dame (1996)

N/A 1997 Hunchback of Norte Dame–a Musical Adventure (Disney-MGM Studios)

Source: collected and edited by the author IV. Conclusion It is clear that the public domain has been primarily important for Disney to produce

animated films. As Boiler (2002: 3) emphasizes, the public domain always has been “a

24

quiet but powerful force in fostering creativity and public dialogue.” While Disney has

been one of the biggest beneficiaries of the public domain, the company’s lobbying

efforts locked ever-growing public domain materials under the CTEA for another

generation. This privatization of the public domain indicates that the CTEA is a huge

windfall for corporate copyright holders, and copyright is being transformed into a tool

for securing copyright holders’ commercial interests instead of a mode of encouraging

new cultural expression. Considering the content industry’s lobby during the legislation,

the law is, in truth, little more than a novel form of market protectionism and corporate

welfare. In this light, the Eldred case is not just a legal fight about additional 20 years of

copyright term or about Mickey Mouse for the public domain, but a struggle to restore

unbalanced systems of our cultural expression.

Our cultural expression, including art and literary works, are not created in

vacuums. Creators need a rich public domain from which they can draw free (or

affordable) materials. Just as the Walt Disney Company used the works in the public

domain to produce some of the best of its animated films, so too would the next Walt

Disney be able to build upon the story told by Disney. Likewise, artists, authors and

corporations always want to have access to plentiful resources in the public domain in

order to create their works. It is because works in the public domain are more accessible

at lower prices (or even for free) without permission. For example, while still under the

copyright, every copyrighted work cost more than twice what it cost once it entered the

public domain, and some cost multiples of that (Luck, 1996). Like Eldred, in reality,

there are numerous businesses and organizations that utilize works in the public domain

for their livelihood. Depriving them of an ever-growing public domain is not different

25

from depriving them of some of incentives to create because they have to pay a heavy

price in continued royalties on old works. Therefore, the lack of support for the public

domain, which was demonstrated by Congress and approved by the Supreme Court, is

detrimental to many of us.

However, recognizing the importance of the public domain alone is not sufficient

to resolve the controversy regarding the CTEA. In the Eldred case, one of the unexplored

questions was whether the extended copyright terms (life-plus-70 years or 95 years) are

too long to secure the public domain. In the case, the Court concluded that the extended

terms are still a “limited Times” allowing Congress the power to secure copyright

extensions. Unfortunately, the petitioners in the Eldred case failed to prove that the

extended copyright terms due to the CTEA sanctioned the excessive longevity of

monopolies to copyright owners (Farid, 2003; Perry-Kampf, 2003). While it is very

difficult to analytically figure out how long period of copyright terms can be best enough

to guarantee the maximum level of creativity, some scholars suggest that most

copyrighted works depreciate rapidly and therefore the expected life of most copyrighted

works is very short. According to Landes and Posner (2003), fewer than 11 percent of the

copyrights registered between 1883 and 1964 were renewed at the end of their 28 year

term. Also, only a tiny fraction of the books ever published are still in print; for example,

among 10,027 books published in the U.S. in 1930, only 174 (about 1.7 percent) were

still in print in 2001. According to their estimation, for copyrighted works first registered

in 1934, which will not enter the public domain until 2029 due to the CTEA, their

estimated depreciation rate implies that of the works, 50 percent had fully depreciated by

1944, 90 percent by 1977, and 99 percent by 2000; fewer than 1 in 750 works registered

26

in 1934 will have commercial value in 2030. These findings entail that the current

copyright terms are unnecessarily long because only a relatively few highly valuable

works would remain under the benefits of the CTEA. In other words, under the current

system, only works that already have used up any of their commercial values are allowed

to enter the public domain. This means the public domain would be no more than cultural

junkyard or a trash box of copyrights.

As Boyle (2001) illustrates, we are in the middle of a second enclosure movement

which is driven by industry capture. The benefits of the CTEA are conferred on a

relatively small set of content industries, whereas the social costs are widely diffused

among the public. At the same time, the legislature has persistently narrowed the power

of and protection to the public with respect to copyrighted material (Farid, 2003). Like

Disney’s lobbying efforts, these trends indicate that a few, yet very powerful owners of

valuable copyrights that are soon to expire will keep trying to persuade Congress to

extend the term. These corporate attempts drives a recurring political dynamic in which

lobbying efforts would be repeatedly biased in favor of a small group of giant content

industries preferring the expansion of copyrights. Considering the public domain must be

protected as a constitutional dimension, the idea that only works which have no value of

any kind should be allowed to pass into the public domain is incompatible with the spirit

of copyright laws. The current vicious circle of corporate-driven copyright systems will

be detrimental to the public domain. The result will be the lack of cultural expression,

and ultimately the end of creativity.

27

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