Muerto Mouse: Disney’s Monopoly over Intellectual Property Law

Introduction

Coco is my favourite Disney movie. When I learned we could choose any topic for this project, my mind immediately went to the film—I was touched by the story of Miguel Rivera, a young boy living in the fictional town of Santa Cecilia, Mexico, trying to balance his love for music and his family’s hatred for it against the setting of Día de los Muerto (Day of the Dead). The movie, to me and many others, is a moving glimpse into “love, family and tradition” [1].

I was not surprised, however, to learn that Coco’s production history is problematic politically, culturally, and legally. In 2013, for example, the Walt Disney Company (“Disney”) applied to trademark the term “Día de los Muertos” in a bid to monopolise its Day of the Dead products and themed merchandise [2]. This move understandably faced an onslaught of criticism from the Mexican-American community as it seemed like Disney was trying to copyright the holiday of great cultural significance [3]. Dia de los Muerto is a holiday observed in Mexico to honour loved ones who have passed, derived from the rituals of Mexico’s pre-Hispanic peoples [4]. Political cartoonist Lalo Alcaraz even said, “I couldn’t believe they would let someone in their legal department let this happen.” [5]

While this demonstrates Disney’s culturally insensitive practices, it also alludes to their “imperial copyright strategies” and monopoly over intellectual property [7]. Disney has notably lobbied to extend the copyright term to maintain their ownership over properties like Mickey Mouse and Winnie the Pooh—the Copyright Term Extension Act 1998 (also known as “the Mickey Mouse Copyright Act” because of Disney’s involvement) extended copyright terms by twenty years [8]. Disney’s monopolistic acts have an effect on intellectual property law and the value of the public domain, as will be explained later on in this project. 

To fully comprehend Disney’s monopoly over intellectual property and how it might affect the field, the relationship between intellectual property law and antitrust law must first be understood.

Intellectual Property Law vs Antitrust Law

Antitrust law and intellectual property law frequently overlap each other, and are even seen as conflicting bodies of law [10]. Intellectual property rights, as we now know, create exclusive rights to a work; once an individual becomes the owner of intellectual rights, they can exclude others from those rights [11]. Antitrust law, in contrast, protects competition and the competitive process by preventing certain monopolistic behaviours [12]. It also aims to protect consumers from the consequences of a lack of competition [13]. 

In economic terms, a specific work protected by intellectual property law cannot be freely sold or distributed. When intellectual property law bestows control on a particular asset, intellectual property law “evades regular competition dynamics” and goes against antitrust law [14]. Put very simply, intellectual property law creates monopolies, while antitrust law fights them [15].

The tension subjected to the most heated debates is the scenario in which a behaviour complies with intellectual property law but contravenes antitrust law. An intellectual property right holder asserts that their right permits them to behave in ways that harm competition. While their intellectual property right does allow them to exclude others from using their work, it may lead to antitrust injury [16], such as an increase in market prices, a limit to output, a worsening of the quality and diversity of supply, and a decreased rate of innovation [17].

Canada protects competition in its Competition Act. The Competition Tribunal has the jurisdiction under s 75(1) of the Competition Act to compel a supplier to deal with a customer if their refusal to do so is having or is likely to have an adverse effect on competition in a market [18].

Disney’s Monopolistic Intellectual Property Law Strategies

Below are some ways Disney monopolises intellectual property law [19]:

1. “Re-copyrighting”
2. Legislative lobbying 
3. Trademarking 
4. “Vaulting”

“Re-copyrighting”

When someone mentions “Rapunzel”, what do you think of? Do you think of the original story by the Brothers Grimm, published in 1812, of a husband desperately stealing a salad green for his pregnant wife and having to give up his child as punishment [20]? Or do you think of Disney’s 2010 version with the floating lanterns?

Lantagne uses this to explain Disney’s appetite for re-copyrighting. (Actually, she used Beauty and the Beast, but I used Rapunzel because I love the movie “Tangled” more.) For many of its works, Disney effectively took material from the public domain and embellished it with its own elements. As a result of these additions, Disney is able to “define” the fairytale and assert ownership over it, thereby “re-copyrighting” it.

Disney compounds this by creating derivative works, such as live-action films. With each new addition or modification to a work, it starts a new “copy-right clock”, extending Disney’s ownership [21]. Commentators say that “Disney’s perpetual remakes allow it to effectively keep restarting the copyright clock” [22]. This then prevents others from using Disney’s works.

Legislative Lobbying

Disney has also built a system of legal protections that it can employ to further extend their copyright ownership.

For example, Disney lobbied to reduce the spread of section 230 of the US’ Communications Decency Act (“CDA”) abroad [23]. This section provides immunity to online platforms from civil liability based on third-party content and for removing content in certain circumstances [24]. In imposing greater liability on internet platforms, Disney has more control over how platforms behave and use their works [25], cementing their monopoly.

Canada does not have a legislative equivalent of s 230 CDA, but the United-States-Mexico-Canada Agreement requires that Canada protects online platforms against liability for hosting third-party content [26].

Trademarking

Disney also uses trademark law in its arsenal of intellectual property law monopolistic tricks. For example, even though Winnie the Pooh and other Disney characters are in the public domain, they remain protected under trademark law, and will continue to be protected as long as Disney files the required paperwork [27]. Additionally, while “Steamboat Willie” is in the public domain, Disney trademarked some “Steamboat Willie” clips [28]. This also prevents others from using these works.

“Vaulting”

Disney has a habit of “vaulting” its works. They make them unavailable for a time to increase their value when they are again available. As Disney now owns Twentieth Century Fox (“Fox”), Disney has begun to make many Fox movies unavailable, including films like The Sound of Music which small theaters depend on to earn. Small theaters are then incapable of competing against larger theaters and streaming services. This has a ripple effect—without small theaters, independent filmmakers will have difficulty attaining an audience [29].

The Effect of Disney’s Monopoly on the Public Domain

Disney’s monopoly in intellectual property law illustrates the interactions between intellectual property law and antitrust law. With their actions, Disney deprives the public domain of access to creative works, suppressing non-Disney approved creativity [30]. In taking the market to itself, Disney weakens small theaters and films, reduces the diversity of films, and takes away from our culture [31]. As “most production of knowledge and culture has always taken place within the public domain”, this can be concerning. 

Some scholars argue that antitrust law should be used more expansively in order to balance Disney’s government-sanctioned copyright monopoly [33]. Others opine that the copyright term is already too long and ought to be shortened, especially since most of the profit is gained in the first few years of a work’s publication anyway [34].

(If you would like to know more about Disney’s intellectual property strategies, I highly recommend “Building a Better Mousetrap: Blocking Disney’s Imperial Copyright Strategies” by Stacey M. Lantagne. It is an engaging, informative piece that is also wonderfully written!)

Thank you for reading! Congratulations on finishing today’s paper as well 🙂

References

1. Olga Segura, “Disney tried to trademark ‘Day of the Dead.’ They make up for it with Pixar’s ‘Coco’” (21 November 2017), online: <https://www.americamagazine.org/arts-culture/2017/11/21/disney-tried-trademark-day-dead-they-make-it-pixars-coco> [Segura].
2. Orquidea Morales, “Horror and Death” (2020), University of California Press.
3. Segura, supra at note 1.
4. Patricia Bauer, “Day of the Dead”, Britannica, online: <https://www.britannica.com/topic/Day-of-the-Dead>.
5. Segura, supra at note 1.
6. Lalo Alcaraz Art Shop, online: <https://lalo-alcaraz-art-shop.myshopify.com/products/muerto-mouse-print>.
7. Stacey M. Lantagne, “Building a Better Mousetrap: Blocking Disney’s Imperial Copyright Strategies” (2021), Harvard Law School Journal of Sports & Entertainment Law [Lantagne].
8. Ibid.
9. Mariateresa Maggiolino & Laura Zoboli, “The Intersection Between Intellectual Property and Antitrust Law” (2021) [Maggiolino & Zoboli].
10. Keith N. Hylton, “Antitrust and Intellectual Property: A Brief Introduction” (2016), Boston University School of Law [Hylton].
11. Lantagne, supra at note 7.
12. Ibid.
13. Hylton, supra at note 10.
14. Maggiolino & Zoboli, supra at note 9.
15. Ibid.
16. Ibid.
17. Ibid.
18. Competition Act R.S.C., 1985, c. C-34.
19. Lantagne, supra at note 7.
20. Carl Seaver, “The True Story of Rapunzel”, History Defined (17 December 2022), online: <https://www.historydefined.net/the-true-story-of-rapunzel/>.
21. Lantagne, supra at note 7.
22. Ibid.
23. David McCabe, “IBM, Marriott and Mickey Mouse Take On Tech’s Favorite Law”, NYTimes (4 February 2020), online: <https://www.nytimes.com/2020/02/04/technology/section-230-lobby.html>.
24. “DEPARTMENT OF JUSTICE’S REVIEW OF SECTION 230 OF THE COMMUNICATIONS DECENCY ACT OF 1996”, U.S. Department of Justice, online: <https://www.justice.gov/archives/ag/department-justice-s-review-section-230-communications-decency-act-1996>
25. Lantagne, supra at note 7.
26. Sarah E. Whitmore, Lara Guest & Adrienne Oake, “Media and communications: Risks of liability emerging for online platforms in Canada”, Torys (2021), online: <https://www.torys.com/en/our-latest-thinking/publications/2021/11/risks-of-liability-emerging-for-online-platforms-in-canada#:~:text=Canada%20has%20not%20enacted%20legislation,for%20hosting%20third%2Dparty%20content.>.
27. Rachel Reed, “No Mickey Mouse operation”, Harvard Law Today (6 October 2023), online: <https://hls.harvard.edu/today/harvard-law-i-p-expert-explains-how-disney-has-influenced-u-s-copyright-law-to-protect-mickey-mouse-and-winnie-the-pooh/> [Reed].
28. Lantagne, supra at note 7.
29. Ibid.
30. Ibid.
31. Brett Heinz, “It’s Time to Break Up Disney”, The American Prospect (1 October 2019), online: <https://prospect.org/power/time-to-break-up-disney-monopoly/#:~:text=Disney’s%20emergence%20as%20a%20monopoly,worsens%20economic%20and%20political%20inequality.>.
32. Lantagne, supra at note 7.
33. Ibid.
34. Reed, supra at note 28.