Irony Alert: Disney (Yes, DISNEY!) Whines About 'Overzealous Copyright Holders'

Here's one that might create a bit of a stir. The history of the 20th century and maximalist, ever expanding copyright is often associated with one particular company: Disney. I mean, the 1998 Copyright Term Extension Act (CTEA) is regularly called the "Mickey Mouse Protection Act" and Tom Bell once created this lovely Mickey Mouse Curve showing how copyright terms always seemed to expand just before the original movie starring Mickey, Steamboat Willie was about to enter the public domain:

This pattern might finally (miraculously) end this year -- but not because Disney has become enlightened. Rather, it's mainly because Disney's lobbying influence is not what it once was, and SOPA seemed to make both Congress and the legacy entertainment industry realize that they would almost certainly lose another such fight on an issue like this (not that there weren't attempts to slip provisions into trade agreements that had the potential to expand copyright terms).

However, it does seem notable -- as first spotted by Eriq Gardner at The Hollywood Reporter -- that Disney has now been put in the possibly awkward position of complaining about "overzealous copyright holders," and talking about the importance of user rights and fair use to protect free speech and the First Amendment. No, really.

Disney, of course, owns ABC. Back in May (though the complaint appears to incorrectly state March), ABC aired a two-hour program entitled The Last Days of Michael Jackson. The Michael Jackson Estate was not pleased and sued for copyright infringement. The complaint itself is quite a read. It completely mocks the program in question:

Although titled The Last Days of Michael Jackson, the program did notfocus on Michael Jackson's last days. Rather, it was simply a mediocre look back atMichael Jackson's life and entertainment career. A Rolling Stone review describedthe program as "offer[ing] little in the way of new revelations or reporting and attimes seems heavy on armchair psychoanalysis and unsupported conjecture." Themagazine was being too generous. The program contained nothing "in the way ofnew revelations or reporting."

It also digs deep on Disney's well-known history for maximalism:

Disney's media business depends on its intellectual property and, morespecifically, the copyrights it holds in its well-known characters, motion pictures,music, and the like. Disney has never been shy about protecting its intellectualproperty. Indeed, its zeal to protect its own intellectual property from infringements,real or imagined, often knows no bounds.

a. Disney has threatened to sue independent childcare centers forhaving pictures of Mickey Mouse and Donald Duck on their walls, forcingthem to remove all pictures of Mickey or Donald-and otheranthropomorphized mice or ducks-rather than face ruinous litigation fromone of the world's largest corporations.

b. Disney once sued a couple on public assistance for $1 millionwhen they appeared at children's parties dressed as an orange tiger and a bluedonkey. Apparently, these costumes cut too close to Tigger and Eeyore forDisney's tastes.

c. Disney takes a very narrow view of copyright law's "fair use"doctrine. For example, just a few years ago, it sent DMCA takedown noticesto Twitter, Facebook, and other websites and webhosts, when consumersposted pictures of new Star Wars toys that the consumers had legallypurchased. Apparently, Disney claimed that simple amateur photographs ofStar Wars characters in toy form infringed Disney's copyrights in thecharacters and were not a fair use.

It's hard to deny any of the above. And thus, the complaint, with a healthy dose of snark, notes Disney's fairly blatant hypocrisy:

Like Disney, the lifeblood of the Estate's business is its intellectualproperty. Yet for some reason, Disney decided it could just use the Estate's mostvaluable intellectual property for free. Apparently, Disney's passion for thecopyright laws disappears when it doesn't involve its own intellectual property andit sees an opportunity to profit off of someone else's intellectual property withoutpermission or payment.

It claims "at least thirty different copyright works" were used without permission. These included clips from songs and music videos, concert footage and the Jackson Estate's own documentary footage. So now Disney has answered and finds itself, quite incredibly, arguing against overzealous copyright holders and about the importance of protecting the First Amendment from being harmed by excessive copyright claims. Literally.

This case is about the right of free speech under the First Amendment, thedoctrine of fair use under the Copyright Act, and the ability of news organizationsto use limited excerpts of copyrighted works-here, in most instances well less than1% of the works-for the purpose of reporting on, commenting on, teaching about,and criticizing well-known public figures of interest in biographical documentarieswithout fear of liability from overzealous copyright holders.

I agree with everything in that paragraph. I'm just shocked that it's Disney stating this. Disney is not the most credible defender of the First Amendment and fair use. Nor is it the most credible defendant to be yelling about overzealous copyright holders. Throughout the answer to the complaint Disney insists that its uses of the Michael Jackson works "were included in the Documentary on a transformative and fair use basis."

Without having seen the documentary, it's impossible to say whether or not the uses truly qualify as fair use, though the argument that they are sounds reasonable. But the idea that Disney is the one fighting for fair use and against overzealous copyright holders remains stunning and bizarre. I'd like to believe this is Disney coming to its senses and making amends for the century of harm its done thanks to copyright, but it seems much more likely that this is just an opportunistic defense of fair use, and the company remains firmly in the camp of supporting ever expanding copyrights.

I wonder how Disney would feel if someone showed up to future hearings in the case wearing an unauthorized Mickey Mouse costume?