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S. 4178: Copyright Clause Restoration Act of 2022

In terms of copyright law, this would be a whole new world.

Context: Disney

In March, the Republican-led Florida legislature and governor enacted a law restricting instruction about LGBTQ topics in schools. Officially titled the Parental Rights in Education Act, the bill was nicknamed ‘Don’t Say Gay’ by critics.

Those critics included The Walt Disney Company. The corporation is Florida’s largest private employer thanks to several Disney-affiliated theme parks, hotels, and other attractions, particularly around the Orlando area. The company officially opposed the law when CEO Bob Chapek announced the opposition at an annual shareholder meeting, albeit after the legislature had already passed it.

Back in 1967, Walt Disney World’s planned 1971 opening was an undertaking larger than any other in theme park history, functioning more like its own municipality than part of an existing one. So the Florida legislature agreed to give Disney its own autonomous governing rights over the 25,000-acre property, officially named Reedy Creek Improvement District.

This provoked little to no pushback for 55 years, until this spring. In retaliation for Disney’s stance, Florida voted to dissolve the special district, approving the measure 23–16 in the state Senate and 70–38 in the state House. Gov. Ron DeSantis (R) signed it into law in April. Disney’s district won’t be dissolved right away, instead taking more than a year until June 1, 2023.

Context: copyright

Dissolving Disney’s Reedy Creek Improvement District was an issue within the Sunshine State’s jurisdiction. But with Republicans upset at Disney nationwide, could congressional Republicans also punish the company on a federal level?

Copyright is such a federal jurisdiction.

Under current law, most copyrights apply for 95 years after publication. (For creative works for which there was a single author, like a book, the existing copyright lasts for 70 years after the author’s death. However, that doesn’t apply to Disney’s most famous creations, such as their movies and characters.)

Some of Disney’s copyrights, most prominently for their iconic mascot Mickey Mouse, were originally set to expire in 1984 but were extended twice by Congress since then. The laws were related to copyright more generally, rather than Disney or Mickey Mouse specifically. But one such extension, officially titled the Sonny Bono Copyright Term Extension Act of 1998, was derisively nicknamed the Mickey Mouse Protection Act in the media.

What the bill does

The Copyright Clause Restoration Act is a new bill that would retroactively limit copyrights to 56 years for any company with a market capitalization greater than $150 billion. Indeed, Disney is currently valued around $187 billion.

There are 46 U.S. companies currently valued at more than $150 billion, the bill’s threshold. So even though the lead sponsor himself says the bill is intended to punish Disney, it would also hit some other companies who haven’t done anything specific recently to antagonize the GOP. One example may be Comcast, which owns both NBC and Universal Pictures.

In other words, Disney would lose all its copyrights of its creations made before 1966. That would expire the copyrights on all its animated films up through 1963’s The Sword in the Stone, while retaining them for films since 1967’s The Jungle Book. Disney would also lose its copyrights on characters like Mickey Mouse, Minnie Mouse, Donald Duck, Goofy, and Pluto, all of which were introduced before 1966.

To be clear, Disney would still hold their trademarks, which are different from copyrights. If a copyright expires but a trademark is still in place — as would occur if this bill becomes law — other companies and creators could now use the Mickey Mouse logo, but just not in a way that implies the product or creation was made or endorsed by Disney itself.

It was introduced in the Senate on May 10 as S. 4178, by Sen. Josh Hawley (R-MO).

What supporters say

Supporters argue that Congress and Disney have been too cozy for decades, including just earlier this year: in January, the U.S. Copyright Office hired The Walt Disney Company’s deputy general counsel as their own general counsel.

“The age of Republican handouts to Big Business is over. Thanks to special copyright protections from Congress, woke corporations like Disney have earned billions while increasingly pandering to woke activists,” Sen. Hawley said in a press release. “It’s time to take away Disney’s special privileges and open up a new era of creativity and innovation.”

What opponents say

Opponents counter that the bill is likely unconstitutional.

“The Supreme Court has held that Congress can extend the term,” Santa Clara University School of Law professor Tyler Ochoa told entertainment publication Variety. “But if you try to take the term away, that is almost certainly a taking of property.”

Others have noted that the bill would likely violate 2020’s US.-Mexico-Canada Agreement (USMCA) — which, ironically, was negotiated by the Donald Trump administration, even though it’s Trump and his ilk who are advocating for exactly this kind of legislation now.

Odds of passage

The bill has not yet attracted any cosponsors. It awaits a potential vote in the Senate Judiciary Committee.

Odds of passage are low in the Democratic-controlled chamber. And with zero cosponsors so far, Sen. Hawley will have to do more than just wish upon a star.

Last updated May 20, 2022. View all GovTrack summaries.

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