Stop The Presses: Disney Tells Court About The Importance Of The Public Domain
from the that-disney? dept
As you may know, Disney has something of a reputation when it comes to copyright and the public domain. While the company itself is somewhat notorious for taking works from the public domain, putting its own animated spin on it and then claiming copyright as far as copyright will take them, it also was the prime mover in extending the term of copyright back in 1998 in the “Sonny Bono Copyright Term Extension Act,” which is often referred to as the Mickey Mouse Protection Act. It holds that nickname because Disney lobbied heavily for the Act and because it prevented Mickey Mouse from reaching the public domain. As Tom Bell has shown, there’s a well-known Mickey Mouse curve that shows copyright extending basically every time Mickey Mouse is about to hit the public domain:
So it’s not often you see Disney out there defending the public domain — and the importance of keeping it vibrant and supported by new things. However, that seems to be (sort of) what Disney is, in fact, arguing in a Supreme Court case known as Kimble v. Marvel. There are, of course, a bunch of caveats here. First, it’s a patent case, not a copyright case. Second, it’s Marvel, not technically “Disney,” but Marvel is wholly owned by Disney. The case involves what appears to be a fairly straightforward question: can a patent holder demand royalties after a patent has expired. The obvious answer to this question is “hell no.” And, in fact, that’s exactly what the Supreme Court itself said in 1964 in Brulotte v. Thys Co.:
“We conclude that a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se.”
But, because there can always be questionable rulings, there was another court ruling that (bizarrely) found that you can get a license for something that was never patented if you work out an agreement to that nature (that’s Aronson v. Quick Point Pencil). This has made things messy.
In this case, some Spiderman fans patented a an invention of a toy that could shoot webs out of the toy’s wrists, a la Spiderman. Marvel bought the patent from the inventors, promising a royalty if the company made such a toy, which it did. The patent expired in 2010 and Disney/Marvel stopped paying. The inventors sued… and have so far lost twice in the lower and appeals courts. The issue is now before the Supreme Court, with the direct question of whether or not the ruling in Brulotte should be overturned. Hopefully, it will not be. Once something is in the public domain it should stay there. And that is exactly what Disney/Marvel is arguing — in ways that seem somewhat antithetical to the company’s stance on copyright. Take this for example:
An essential part of the bargain at the heart of the patent
system is that, when the patent term ends, all rights
associated with the patent terminate and the patented
idea is committed to the public domain for the free and
unrestricted use of all. The same policy concerns animate other well-settled patent precedents, including
the rule that a licensee may not be required to continue
to pay royalties after a patent is invalidated. Private
parties are properly forbidden from attempting to
evade those congressional judgments.
Just switch out copyright for patents and you see how this looks quite out of place for Disney to be arguing, since it has fought incredibly hard to make sure that the “end” of the copyright term is an amorphous, ever changing concept that is always in the future. And then there’s this incredible statement, warning of how horrible it would be if royalties might accumulate forever:
If anything, modern developments underscore the need to
protect the public domain from the aggregate toll of patent royalties that would accumulate forever
You don’t say, Disney. How very, very interesting…
Hopefully the Supreme Court makes quick work of this and sides with Disney in protecting the public domain on patents. But it will be interesting to see these statements come back up a couple of years from now as Mickey Mouse nears the public domain again, won’t it?