Bambi: Disney Hoisted by Its Own Animated Petard (Part 2)

Part 1 | Part 2 | Part 3 | Part 4

Bambi is one of the most memorable works of fiction from the 20th century, both in its original novel form and its Disney movie adaptation. But its copyright history takes us into darker woods even than those in the original brutal story. In part 1, I detailed the history of Bambi’s publication and the resulting movie’s appearance. In this part 2, I set the stage for Disney’s comeuppance.

Many who defend the value of the public domain point to Disney as a key mover in stretching the term of copyright in America from something valuable to extended beyond all measure. Disney’s ability came in part from a unique aspect of copyright in the United States: it was enshrined in the Constitution as a fundamental but limited right of ownership.

The relevant article reads, that Congress shall have the power to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Copyright at the time the Constitution was written was still only several decades old, and this provision left Congress to decide on terms.

The public domain exists as a sort of mirror of copyright protection. While under copyright, a creator has the exclusive right to do what they will with a work, including licensing it or withholding it. When a work exits that protection, it enters the culture, and no one can prevent use of it in any form. Copyright is a legal structure, while the public domain is more notional.

From the late 1700s through 1998, Congress fiddled with copyright duration, which through the early 1900s was almost exclusively limited to printed works. Legislation in 1790 set a 14-year term, offering authors who were still alive the option to renew for another 14. By 1909, the duration had doubled: a 28-year initial term with a 28-year renewal, by the creator or their estate, for 56 years total!

In 1976, the U.S. switched from its unique fixed term to one based on the year the creator died. This was in part to harmonize globally with the Berne Convention, an international treaty first established in the late 1800s. The U.S. formally joined the convention in the 1980s.

The 1976 law set the term of copyright for work created starting January 1, 1978, as the author’s life plus 50 years, and at 75 years total for works created starting in 1923. The expiration of that older work would be on January 1 after the 75th year, or January 1, 1999. It would advance one year each January 1 through works produced by the end of 1977. For example, nearly all work published in the U.S. in 1925 should have entered the public domain on January 1, 2001.

The 1999 turnover date was significant—because it never happened. In 1998, Congress took up another extension act, lobbied by Disney, some authors’ groups, and many large media corporations. The act languished until after the death of musician and congressperson Sonny Bono, who had co-sponsored the act. His widow Mary Bono took his seat and invoked his name in speeches to gain support that led to passage of the bill.

The renamed Sonny Bono Copyright Term Extension tacked on another 20 years, much to Disney’s delight, as the studio had started producing work in the 1920s. While the revision allowed work from 1978 and later protection for 70 years after the creator’s death, the post-1922 corpus was what most media groups cared about.

Something placed under copyright on or after January 1, 1923, suddenly remained protected until at least January 1, 2019. That included Steamboat Willie (1928), the first appearance of the minstrelsy-derived Mickey Mouse. Because copyright covers both works as a whole and characteristics that appear in them, not characters, the moment Steamboat Willie enters the public domain, any aspect of Mickey Mouse as he appears in that film is fair game. (In a later article about Sherlock Holmes and the Case of the Overzealous Estate, I’ll dig into these characteristics and some interesting decisions made in U.S. courts.) As of 2021, works through 1925 are now in the public domain.

Protecting its body of work longer may have helped Disney in some regards, but it’s also where it got its comeuppance.

Due to some imprecision by copyright critics, many people believe Disney’s archives are mostly based on public domain stories. Larry Lessig, a great thinker on the topic, spoke loosely in his book Free Culture:

the catalog of Disney work drawing upon the work of others is astonishing when set together: Snow White (1937), Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi (1942), Song of the South (1946), Cinderella (1950), Alice in Wonderland (1951), Robin Hood (1952), Peter Pan (1953), Lady and the Tramp (1955), Mulan (1998), Sleeping Beauty (1959), 101 Dalmatians (1961), The Sword in the Stone (1963), and The Jungle Book (1967)…

Lessig didn’t imply these were all in the public domain, however. Yet even he had to correct himself in a back-and-forth about his book with a columnist friend of mine in 2004 after Lessig initially called them “reworked public domain material.”

(Lessig, by the way, tried to break the back of the Sonny Bono bill in Eldred v Ashcroft, which the Supreme Court decided against his client in 2002. Lessig argued copyright duration was no longer “limited” as required in the Constitution; a 7–2 majority said “limited” just meant confined, as opposed to unlimited.)

Disney most frequently paid for the source material. About half the list above derived from well-known 19th century work that entered the public domain, like Snow White (collected by the Grimm Brothers, 1812) and Pinocchio (Carlo Collodi, 1881–1883). But 101 Dalmatians, Dumbo, The Jungle Book, Lady and the Tramp, Peter Pan, The Sword in the Stone, and our friend Bambi all required licensing deals. Even Fantasia contained copyrighted songs.

(Song of the South is based on a series of stories by Joel Chandler Harris; a collection was published as Uncle Remus in 1881. Due to a 1909 copyright term extension, the book left protection no later than 1938—eight years before the 1946 release of the movie Disney now tries to forget.)

If Disney had let sleeping dogs lie—like the kind that romantically eat a strand of spaghetti—it might have avoided paying out billions to the authors and estates who own the rights to all those works. Cruella is the latest extension to 101 Dalmations that certainly involved money sent to Dodie Smith’s heirs; she wrote the original book in 1954.

It also would have allowed Disney to sidestep a complicated and drawn-out lawsuit that cost milions for them to lose, obliged them to pay tens to hundreds of millions more over two decades, and set new court guidelines for copyright that remain points of argument among experts in that field.

The problem boils down to what wasn’t in the original 1923 Bambi publication—and why the Princeton University Press has its fresh translation coming out on January 1, 2022, instead of January 1, 2019.

In part 3, I’ll explain how the public domain is not the public domain, how an appeals court infuriated copyright scholars, and introduce some more of the remarkable people in Salten’s extended family.