This week, media behemoth Disney responded to a lawsuit from the Michael Jackson Estate over their subsidiary ABC’s use of audio and video from the late singer’s works in their documentary The Last Days Of Michael Jackson. Their response attracted particular interest for its description of the plaintiffs as ‘overzealous copyright holders’, since Disney are notoriously draconian in enforcing their own copyrights – to the point of threatening legal action against daycares over murals depicting Mickey Mouse.
In this light, most coverage of the case views Disney’s position as nakedly hypocritical. Indeed, the Michael Jackson Estate made specific mention of Disney’s history with copyright issues in the initial suit, in particular their usual disregard for the policy of ‘fair use’ – the policy under which they now claim the right to use excerpts from Jackson’s music videos in the documentary.
(The suit also casually slips in that they believe Jackson was killed in a case of foul play, although as they’re not alleging Disney was behind it, it likely doesn’t make much difference.)
It is not usually my way to defend any large corporation, and especially not Big Mouse – many of whose most profitable works were siphoned out of the public domain in the first place. (The descendants of the Brothers Grimm didn’t see a penny from Disney’s 1937 film version of Snow White And The Seven Dwarves.) However, Disney are on pretty strong legal footing here. Under US law, the use of copyrighted works for the purposes of commentary or criticism is held to fall under fair use. It is under the same principle that I can include an image of Mickey Mouse in this article without fear of litigation, as it is part of a wider commentary on how the fair use principle works, in relation to Disney’s works in particular, and (to be completely safe) I’ve added this caveat.
Fair use is the lifeblood of critical journalism – without it, even using the words ‘Mickey Mouse’ could potentially tempt the wrath of Disney’s lawyers, who would think nothing of re-purposing this website as some kind of staging zone for an offensive against their next victim, and consigning me to a pauper’s grave.
The strongest argument put forward is probably the amount of Jackson’s copyrighted work used in the documentary. Disney asserts they have used ‘in most instances well less than 1%’, although they don’t establish whether this is 1% of each video or 1% of Jackson’s entire canon. However, even this doesn’t necessarily torpedo a fair use argument – the use of the entirety of a copyrighted work has, in the past, been found to be fair use, perhaps most famously the reproduction of photographs as thumbnails in internet search results.
So use of bits from the Thriller music video in a documentary about Jackson’s life and works is fairly straightforwardly fair use – and, though it grieves me to say it, more clearly fair use than those poor people who uploaded pictures of Star Wars toys to social media only to have Disney send the platforms cease-and-desists. While the idea they’d infringed on Disney’s copyright in any meaningful way is tenuous at best, it also wasn’t commentary in the strictest sense of the word – nor any of the other exceptions usually held to be fair use, like parody or scholarship.
While you’d assume that a big figure like Jackson does, even in death, have a mean legal team, it’s not a patch on that of the Disney colossus. And this plays into the wider way in which the deck is stacked here, that most people Disney turns their baleful gaze upon simply don’t have the resources to fight them in court. Hence, in the case of the daycares mentioned above, the mere threat of legal action was enough for Disney to get what they wanted.
The Scythian philosopher Anacharsis once said:
“Written laws are like spiders’ webs. They will catch, it is true, the weak and poor, but would be torn in pieces by the rich and powerful.”
And this may be so – but this ignores the issue of where these written laws come from, and, even in Scythia it wasn’t the weak and poor drafting them. Over the course of the past hundred years, America has passed various acts extending the period of time works can be copyrighted before passing into the public domain, a subject of particular interest to Disney given that the earliest Mickey Mouse cartoons were published in 1928.
(Though this only applies to those specific cartoons – The Mouse himself, as a character, remains a Disney trademark as long as they use him commercially, which they would only ever stop doing if physically prevented. And, considering Disney floats more ships than the Singaporean navy, that’d be a tall order.)
Although Disney, thankfully, do not control the American legislative process, they did lobby hard for the passage of each bill to extend copyright terms. As it stands, the copyright of the earliest Mickey Mouse films will expire in 2024 – although prior to the passage of the Copyright Term Extension Act of 1998, they would have gone into the public domain in 2004. With 2024 ticking closer all the time, it’s more than likely there’ll be another hasty extension of copyright terms any day now.
While the CTEA kept The Mouse on the leash for another twenty years, Disney’s most immediate beneficiary of this act was Winnie-the-Pooh, which had been set to become public domain in 2002 – and, unlike Mickey, was originally the creation of A.A. Milne rather than Uncle Walt. Disney’s perpetual trademark of The Mouse hinges on the character having attained the ‘secondary meaning’ of being indelibly associated with Disney as a company – an argument that’d be a lot tougher to make for Pooh bear.
The issue, though, is that this will all remain words unless, once the copyright expires, someone is willing to create a competing Winnie-the-Pooh work and press Disney’s claim – and no matter how shaky it is, Disney will fight for it. They are not the sort to amicably surrender any territory, be it a lucrative franchise or the wall of a Florida daycare. Jacko’s estate, as we’ve seen, made the fatal mistake of not having put favorable laws in place for this sort of eventuality – so anyone capable of snatching Pooh bear from the jaws of Disney will likely be an even bigger and more terrifying corporate monolith.