Hawley’s bill would dramatically rewrite U.S. copyright law, shortening the total term available to all copyright holders going forward by several decades. It would also seek to retroactively limit Disney’s copyrights, effectively stripping the company of much of its intellectual property, in a move that would face several legal obstacles.
“That is a blatantly unconstitutional taking of property without compensation,” said Prof. Paul Goldstein, an intellectual property expert at Stanford Law School.
Hawley’s move comes on the heels of Gov. Ron DeSantis, who signed a bill last month that aims to dissolve the Reedy Creek Improvement District, a 40-square-mile area that Disney controls in Orlando. DeSantis took the action in retaliation for Disney’s opposition to the Parental Rights in Education bill — dubbed “Don’t Say Gay” by its opponents — that restricts classroom discussion of sexual orientation and gender identity.
In a press release announcing the legislation on Tuesday, Hawley said that Disney had benefited from “unnecessarily long copyright monopolies,” and that it is time to end “the age of Republican handouts to Big Business.”
“Thanks to special copyright protections from Congress, woke corporations like Disney have earned billions while increasingly pandering to woke activists,” said Hawley, who once clerked for Chief Justice John Roberts. “It’s time to take away Disney’s special privileges and open up a new era of creativity and innovation.”
The retroactive provision of the bill applies to any entertainment company with a market capitalization above $150 billion. Disney’s market cap is $196 billion.
In 1998, Disney lobbied heavily for the extension of copyright for works made for hire, such that critics dubbed the bill the Mickey Mouse Protection Act. The character first appeared in “Steamboat Willie” in 1928, and was set to enter the public domain in 2003. The act extended the term from 75 years to 95 years. The character — at least, the original black-and-white version — is now set to lose copyright protection on Jan. 1, 2024. (Disney would still retain copyright to later versions of the mouse.) There is no indication that Congress is interested in further extending copyright at this point.
Hawley’s bill would impose a 56-year term on all of Disney’s copyrights retroactively. Prof. Tyler Ochoa, an intellectual property expert at the Santa Clara University School of Law, agreed with Goldstein that that is likely unconstitutional.
“The Supreme Court has held that Congress can extend the term,” Ochoa said. “But if you try to take the term away, that is almost certainly a taking of property.”
The Copyright Act of 1909 set an initial copyright term of 28 years, with an option for a renewal of another 28 years. In 1976, Congress extended the term to the life of the author plus 50 years, later extended to 70 years. That provision is necessary to participate in the Berne Convention — the international treaty on copyrights. If Congress were to go back to a 56-year maximum, it would violate the treaty, potentially incurring monetary penalties or trade sanctions.
Restricting copyrights to 56 years would also likely draw opposition from every corner of the creative world — not just from Disney and other entertainment companies, but from authors, composers, songwriters, and many others.
“Copyright contributes $1.5 trillion to the U.S. economy and employs 5.7 million Americans,” said Keith Kupferschmid, CEO of the Copyright Alliance, which represents copyright holders in Washington, D.C. “This legislation would harm those millions of everyday Americans in all 50 states who rely on copyright for their livelihoods in creative industries largely dominated by independent and small businesses.”
Disney did not respond to a request for comment.
Ochoa said that Congress does have the power to limit copyright terms prospectively — but he does not expect that it will.
“This has zero chance,” he said. “He’s showboating.”