Case could strip Disney of Mickey

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent  |  Oct. 9, 2002 at 2:08 PM
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WASHINGTON, Oct. 9 (UPI) -- The Supreme Court heard argument Wednesday in case that should decide whether popular icons such as "The Wizard of Oz" and Mickey Mouse enter the public domain.

At issue is whether Congress exceeded its power with the latest extension of U.S. copyright protection.

More than Mickey, Minnie and Dorothy are at stake.

Other films such as "Citizen Kane," "Casablanca," and "Gone With the Wind" would no longer be subject to copyright protection if the government loses its case.

Many of the works of Robert Frost, Agatha Christie, Tennessee Williams, Ernest Hemingway, George Gershwin, Cole Porter, Irving Berlin and many others would belong to the public, not to the writer's estates.

If the government wins, those works would stay copyrighted for another two decades.

Much of the 20th century's creative output is being protected by the latest copyright extension. The effect on American popular cultural would obviously be profound, whichever way the case is decided.

Spurred in part by arguments from Disney and others, Congress brought U.S. copyright law into conformity with the laws of the European Union in 1998 with the passage of the Sonny Bono Copyright Term Extension Act, which lengthened the terms of existing U.S. copyrights by 20 years.

The "copyright clause" of the Constitution gives Congress 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 and discoveries."

Congress first used the power in 1790, when it enacted a number of copyright statutes. Specifically, the Copyright Act of 1790 established a copyright term of 14 years for newly created works and the existing works protected by laws in the states.

Congress extended the protection in 1831 and 1909.

However, today most copyright claims are protected by the Copyright Act of 1976, which gives an author the exclusive right to publish and reproduce an exclusive work during the author's life plus 50 years.

The 1998 Sonny Bono Copyright Term Extension Act, among other things, extends the terms of copyrights for another 20 years.

A coalition of corporations, associations and individuals who use works in the public domain filed suit in Washington in January 1999, contending that Congress was exceeding its "copyright clause" power with the latest extension.

The Constitution says copyrights can be established for "limited times," the group told the Supreme Court in a petition.

Because of the 1998 act, "works originally authored in 1923 that would have fallen into the public domain in 1998 could now remain under copyright until 2019 -- a term of 95 years," the groups petition said. For "an author who produced in the pattern of Irving Berlin (that) would mean a term of 140 years." Berlin, one of the most popular songwriters in U.S. history, died in 1989 at the age of 101.

When a federal judge and a federal appeals court ruled against them, the members of the coalition asked the Supreme Court for review.

A public group called the Internet Archive, a non-profit organization trying to build an Internet library, and a group of copyright law professors filed their own briefs asking the Supreme court to hear the case.

Speaking for the coalition of challengers before the Supreme Court Wednesday, Stanford professor Lawrence Lessig told the justices that the case was not about whether Congress had the power to set the terms of copyrights. It did.

"This case is about limits to an enumerated power," Lessig said.

From the bench, Justice Sandra Day O'Connor pointed out that, besides 1998, Congress extended copyrights in 1831, 1909 and 1976. "If you are right," O'Connor asked, "don't we run the risk of upsetting previous extensions of time?"

Lessig conceded that under his argument those extensions could also be considered unconstitutional. But he argued that no one was challenging the earlier changes, and they were not in danger.

That brought skeptical comment from Justice Stephen Breyer, for one, who said a victory for the challengers might result in a rollback of previous extensions. "The chaos that would ensue would be horrendous," Breyer said.

U.S. Solicitor General Theodore Olson represented the federal government, which contends that Congress acted within its power and that copyright extensions do not violate the First Amendment's guarantee of free expression.

Olson also argued that bringing U.S. copyright protection up to EU standards "provides incentives for people to publish here, rather than Europe."

The solicitor general said the Framers of the Constitution had the opportunity to put a number limit on copyright terms, but specifically chose not to do so.

Wednesday's argument attracted an audience to the Supreme Court that included Jack Valenti, chairman and chief executive officer of the Motion Picture Association, who has debated Lessig on the issue in the past.

After hearing an argument in a case, the Supreme Court usually takes some time to hand down a decision, though a majority of the justices appeared to be leaning toward the government's view Wednesday.

A decision should be handed down sometime within the next several months.

(No. 01-618, Eldred et al vs. Ashcroft)

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