Famous Works Soon Seeing End to Copyright Term Extension of 1998

2024 was a big year for copyright law. But if you are wondering why this retrospective is being published in 2022, understand that this post could have been written in 1998. To see why, we need to look back to 1998 when congress passed a bill called “The Sonny Bono Copyright Term Extension Act.” (Congressman Bono was a sponsor in the House of Representatives, but the name of the act may have more to do with his untimely death in a skiing accident that year.)

Copyright Term Extension, Mickey, and a Challenge

This bill was unpopular in some circles and often derided as the “Mickey Mouse Protection Act” because Walt Disney Co. had been lobbying for copyright extension for years to protect their interests—namely, their lovable mouse who first appeared in film in 1928. In fairness, many artists and nearly every big business that had any substantial copyright holdings was also lobbying for a longer copyright term. Self-interest is a powerful force of nature.

The effect of this law was to extend the length of time a copyright is enforceable for some copyrights up until 70 years after the death of the author (up from the then current 50 years), and for anonymous works and works made for hire to the earlier of 120 years from creation or 95 years after publication. It also restored some copyrights that had already fallen into the public domain and caused additional mischief that makes calculating copyright terms extraordinarily difficult.

The law was unsuccessfully challenged in the Supreme Court case of Eldred v. Ashcroft, 537 U.S. 186 (2003) largely on the basis that the Constitution only allows Congress to secure copyright for limited times. Back in the late ‘90s, the 2020s still looked like “the future.” Now that the extended copyrights are expiring, that argument looks a little quaint.

Mickey to Be “Free” After Copyright Term Extension Ends

Now back to Mickey Mouse. Steamboat Willie was released (published) at the end of 1928, so its 95 year copyright term expires at the end of 2023. When we enter 2024, the mouse will be free. But not that free. As far as Mickey is concerned, it is only the art in Steamboat Willie that will enter the public domain. He looks good for his age and now usually wears gloves. Modern depictions are still protected. The strength of that protection will no doubt be tested in the coming years. Nevertheless, it is still a milestone in copyright history.

Caution to Those Seeking Public Domain Opportunities

The end to copyright extension protection for copyrighted works can provide opportunistic avenues for third parties waiting to take advantage.  But there are many additional legal pitfalls to watch out for. Trademark law is a big one. Trademarks can last indefinitely, so while the original Mickey Mouse copyright will expire, Disney still owns the trademark. 

There are a lot of interesting books, musical works, movies, etc. that have expired or will expire soon. I’m excited to see what people can do with these stories once they are unfettered and free to use and adapt. However, just because an image enters the public domain does not mean it’s free to use in all situations.

If you have a project that involves a recently expired copyright, you should definitely consult with an attorney to make sure you are really in the clear.

Key Takeaways on the End of Copyright Extension Protection for Famous Works

While the 1998 Copyright Extension Protection Act gave a substantial additional amount of years of protection to registered works, the end of term is nearing for many famous works, which means:

• The works will become public domain and free for use by third parties;

• Owners of the works may still have other forms of intellectual property to help protect some aspect of those works;

• It is important for would-be users to have a clear understanding of what exactly is becoming public domain and what is truly fair use; and

• It is important for owners of works to be equipped with other intellectual property protections to help continue to enforce any rights they can.

For more information about copyright protection and litigation, see our Software and Copyrights Services and Industry Focused Legal Solutions pages.