Copyright term under Disney’s spell?

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By James Lawrence, Partner and Thomas Mangan, Lawyer

Dynamic History

Within Australia, the provisions of the Copyright Act 1968 (Cth) governing the term (i.e. duration) of copyright have changed several times over the years. As a result, different rules apply to different types of copyright works and ascertaining the life of copyright on any particular work can be challenging. However, the current general rule is that copyright in a work (i.e. a literary, dramatic, musical or artistic work) lasts for the duration of the author’s life plus 70 years.

Up until 2005, this general rule was the duration of the author’s life plus 50 years. Why did this change? Because in 2005 Australia ratified the Australia-US Free Trade Agreement (AUSFTA), which required Australia to amend its domestic copyright laws to extend copyright term in most cases to 70 years after the author’s death. This change essentially paralleled US copyright laws.

Interestingly, the laws in the US were amended a number of times prior to 2005, which also resulted in the copyright term extending to 70 years after the author’s death. Many refer to this as the “Mickey Mouse Rule” and argue that the cartoon mouse is the underlying reason for the ongoing change.

The Mickey Mouse Rule

When the US Copyright Act was first enacted, copyright duration was only 14 years. By 1831 it was changed to 28 years with a 14-year renewal and in 1909, copyright duration became 28 years with a 28-year renewal. It is important to note that unlike in the US there is no registration system for copyright in Australia.

Mickey Mouse first hit the scene in 1928 in Walt Disney’s Steamboat Willy cartoon. Under the copyright rules of the time, the Mickey Mouse character had copyright protection for 56 years (including the 28 year renewal), which expired in 1984. With the pending expiry of Mickey Mouse approaching, it is said that Disney lobbied hard for copyright reform and in 1976 copyright law was changed again to cover the author’s life plus 50 years, or 75 years for corporate copyrights. This pushed the protection of Mickey Mouse out to 2003.

Again, five years before Mickey Mouse was set to be part of the public domain, Congress enacted legislation extending for works created on or after January 1, 1978, to “life of the author plus 70 years,” which has been adopted in Australia. In that same legislative instrument, copyright for corporate works was extended to 95 years from the year of first publication (being from 1928 in mickey Mouse’s case). Therefore with only three years to go, Mickey Mouse is finally set to be part of the public domain in 2023, unless the laws are changed again.

Why is the public domain important?

This means any individual can use the material that enters the public domain in any way they want, without permission to do so and even for a profit. Additionally, once a work enters the public domain, the previous owners can no longer charge royalties or fees for its use.

What if the copyright is owned by a company?

Of course, theoretically a company can be live forever and may lead some to believe that if copyright is created by a company or assigned to a company, it can last forever. However, the existence or otherwise of a company which happens to own copyright has no bearing on the term of copyright. The laws of copyright dictate that in these circumstances copyright term is generally determined by reference to an individual creator’s (i.e. author’s) lifetime; under Australian copyright law, for example, the author of a work is the first owner of the work. If a work was created during that author’s employment, then in most situations the employer will own the work post-creation, but that does not affect the determination of copyright term, which is referable to the author not the owner.

Interesting case study

In 2019 alone, Disney released remakes of The Lion King, Aladdin, Dumbo and the Lady & the Tramp. Many have speculated that Disney are on a remaking rampage to preserve and extend its rights in the copyright of these original works. However, this speculation is most likely inaccurate.

Firstly, out of the 2019 remakes, the only Disney film with any notable vulnerability to copyright expiration is Dumbo, as it is set to be part of the public domain in 2036. Under US law remakes are considered derivative works and there are currently no express provisions in Australia dealing with derivative works in this context. Nonetheless, in the US you are currently unable to extend the initial length of copyright protection by creating a derivative work.

Indeed, under Australian law, a re-make is itself most likely a new copyright work and the term of copyright of the original “old” work is unaffected by the release of the re-make.

Of course, there is the incentive from Disney to utilise their ownership while it lasts. Although, based on Disney’s hard stance in the past we may, over the next sixteen years, see arguments develop regarding derivative works and whether they actually do extend or renew copyright of works.

For further information, please do not hesitate to contact us.

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