Posner and Landes: Overkill on Renewal

In their semi-recent article “Indefinitely Renewable Copyright”, Posner and Landes argue that economic efficiency does not necessary lead to a conclusion that copyright term should be limited, and thus posit that there should be indefinitely renewable copyrights. One point they make is that if copyrights are allowed to fall into the public domain, their commercial value will be lost because of congestion and "overkill". As an example, they use Mickey Mouse, stating:

“If because copyright had expired anyone were free to incorporate the Mickey Mouse character in a book, movie, song, etc., the value of the character might plummet. Not only would the public rapidly tire of Mickey Mouse, but his image would be blurred, as some authors portrayed him as a Casanova, others as catmeat, others as an animal-rights advocate, still others as the henpecked husband of Minnie.”

I have two points to make about this example. The first relates to the public boredom argument. Essentially, they say too much Mickey would kill his commercial value. This might be true if Mickey was the only valuable copyright that fell into the public domain. However, if other Disney characters (Donald Duck, Goofy, Minnie) or even comic superheroes (Batman and Superman) were also available to choose from, the increased competition might extend the period of time for the public to get bored of Mickey. Another issue related to this point is that it seems like Posner and Landes assume a static consuming public. I would agree that if the number of consumers was fixed, and if they all were bored, Mickey would not have any commercial value. We all know that this is not the case, as plenty of new people are born into society each day. Not only that, if Mickey entered the public domain, there exists the potential for Mickey to be used to reach new audiences that the original copyright holder may have never considered or allowed. Thus, an ever-changing and possibly expanding audience would postpone, or possibly even eliminate, the boredom argument.

Putting my arguments aside and sticking to that of Posner and Landes, it is safe to assume that there will initially be overkill in the beginning when Mickey enters the public domain, and then there will be an exponentially decreasing amount of use until there reaches a point that hardly anyone is using Mickey’s image and its value is almost nothing. Posner and Landes seem to think that it is better to string out the characters and have a steady stream of commercial value over the long haul. They even praise Disney in this respect:

"To avoid overkill, Disney manages its character portfolio with care. It has hundreds of characters on its books, many of them just waiting to be called out of retirement…Disney practices good husbandry of its characters and extends the life of its brands by not overexposing them…They avoid debasing the currency."

I am not sure I agree that the optimal use of Mickey would be to have steady popularity over time. There is no assurance that the “Mickey frenzy” that would initially occur when he enters the public domain will produce an overall utility that is less than the amount accomplished by selectively using the image over the long run. When you add in the fact that there is not a static consuming market, and Mickey could be subject to numerous re-births over a long period of time, there is a good chance the overall utility will be increased.

My second point relates to the complete loss of Mickey’s value due to the inevitable “blurring” that would occur if Mickey fell into the public domain. If Disney lost the copyright on Mickey, it is probably a good bet that everyone would jump at the choice to use Mickey to promote cigarettes (“Joe Mouse” instead of Joe Camel), vodka (“Grey Mouse” instead of Grey Goose), malt liquor (“Mickey’s”) and Mickey no doubt would even star in his own full length adult cartoon (I’ll leave that title up to your imagination). Is this so wrong that we should allow copyright extension for all copyrights for an indefinite period? My background is not in science, but I am a believer of Darwinism. Why not apply that concept to copyrights that fall into the public domain? Sure, Mickey might not be portrayed as the innocent and lovable mouse that we grew up with, but maybe Rambo Mickey or Porn-star Mickey would take his popularity to all new heights. Just because Disney chooses to market Mickey to young kids (and adults who want to be kids again), doesn’t mean that that use is the most utility-maximizing option. Where one value stream might end, there might be another, more lucrative value stream around the corner.

To give a copyright an indefinite duration is an awful long time. I think there comes a point in time where the copyright owner has had their fair shot at exploiting their creation, and should let the public decide its fate - for good, or for bad.

Comments

[nathan b]

Posner and Landes are full of it.

Over and over we've seen that you don't need copyrighted material to make a ton of money. Just ask Mel Gibson.

3 of 10 top grossing movies in 2004 were based on public domain works: The Passion, Troy, and Van Helsing. Can anyone seriously say that if SpiderMan 2 was public domain people wouldn't want to see it? Need I mention that Disney's empire was built on the public domain?

[John Lotfi]

Rambo Mickey: thumbs up.

Porno Mickey: sweet baby jesus, no.