The Shocking Truth Behind the Passage of the Sonny Bono Copyright Extension! (Is That It’s Not Really Shocking)

Stephen Carlisle October 30, 2015

Forgive me for going all “tabloid” with the headline, but it’s time to dismantle some of the persistent myths that surround the passage of the Sonny Bono Copyright Term Extension Act (the SBCTEA).

I received an email a few weeks ago from a reader who was obviously aggrieved by something I had written either about Mickey Mouse ¹ or copyright duration, ² or perhaps both. The email stated that I had failed to mention the “real reason” for the passage of the SBCTEA was that Sonny Bono had been paid off by “lobbyists” for the Walt Disney Company, inducing Mr. Bono to rewrite the copyright law in their favor, and that I should “follow the money.” ³

I immediately knew that this was not the case, as Sonny Bono died quite a while before passage of the SBCTEA, thus greatly impairing his ability to persuade his fellow Congressmen. But since the “Disney payoff” is a story that has long been presented as pure fact frequently on the internet, ⁴ I decided that perhaps a little more deep research should be done.

And the “shocking truth” revealed by my research is that very little of what happened was actually shocking.

The first draft of the copyright extension bill was H.R. 604, introduced into the House of Representatives on February 5, 1997. ⁵ The bill’s sponsor was Representative Elton Gallegly, ⁶ a Republican from California. ⁷ The bill had nine co-sponsors, ⁸ none of whom was Sonny Bono, even though he was a member of the House of Representative at the time. ⁹

A companion bill, S. 505, was introduced to the Senate on March 20, 1997 by Orrin Hatch, with five co-sponsors. ¹⁰

So, I think we can dispense with the notion that Sonny Bono was the author and motivating force behind the copyright extension act.

The House version of the bill did not pass, and was reintroduced in the next session as H.R. 2589 by Representative Howard Coble on October 1, 1997. ¹¹ The bill had 12 co-sponsors, including previous sponsor Elton Gallegly and, for the first time, Sonny Bono. ¹² He would be dead a little more than three months later, on January 5, 1998, after skiing into a tree in Nevada. ¹³

As the legislative history shows, H.R. 2589 was not even considered by the House Committee on the Judiciary until March 3, 1998, ¹⁴ almost two months after Sonny Bono died. On March 25, 1998, the sponsor, Howard Coble moved to rename the bill the “Sonny Bono Copyright Term Extension Act.” ¹⁵ That same day, it was passed out of the House by voice vote and sent to the Senate. ¹⁶

Now, that Bono supported the measure is without question. Those too young to recall will not know that Sonny Bono was half of the popular singing duo “Sonny and Cher” and had composed quite a few hit songs himself. ¹⁷

“Bono wrote, arranged, and produced a number of hit records with singles like “I Got You Babe” and “The Beat Goes On”…Bono co-wrote the song “She Said Yeah”, which was covered by The Rolling Stones on their 1965 LP December’s Children.” ¹⁸

So, far from being corrupted by the influx of “Disney dollars” into his re-election campaign, Bono would have supported the measure anyway, as it was clearly in his best self-interest to do so.

The first surprising, if not “shocking,” factor is how little opposition there was to the SBCTEA within the halls of Congress. It passed out of the House on a “voice vote,” meaning the support for the measure was so overwhelming that a “roll call” vote was unnecessary. A similar situation occurred in the Senate. On October 7, 1998, it passed the Senate by “unanimous consent,” ¹⁹ meaning not one Senator voiced an objection to the bill. Back in the House, the final version of the bill again passed by voice vote that same day, ²⁰ and was signed into law by President Clinton on October 27, 1998. ²¹

But, what of the pernicious influence of the Walt Disney Company? Certainly there is no question that Disney lobbied strongly in favor of the bill. It was obviously in their best interests to do so.

But what about the money? Follow the money!

Disney did contribute to the re-election campaign of various members of the House. “Of the 13 initial sponsors of the House bill, 10 received contributions from Disney’s political action committee.” ²²

Aha! Graft! Greed! Corruption!

Until you look at the piddling amounts that were actually paid. The largest amount that was given by the Disney PAC to any one Representative was the sum of $5,000.00. ²³ This amount was given to Representative Cole, who sponsored the bill and Howard Berman, a co-sponsor of the bill and a senior member of the House Judiciary Committee. ²⁴ Everyone else got less.

On the Senate side, Orrin Hatch, the bill sponsor, got $6,000.00. ²⁵ Disney also contributed lesser amounts to eight out of the twelve co-sponsors of the Senate Bill. ²⁶ Senate Majority Leader Trent Lott got $1,000.00. ²⁷

I would like to think that if the vote, power and influence of the Senate Majority Leader is truly “up for sale,” that it would very likely cost more than $1,000.00.

And, remember, not every Member of Congress got money from Disney. Yet, the bill passed by voice vote in the House and unanimous consent in the Senate. They must have thought that there were sound policy reasons for doing so.

In researching this post, I encountered one article that claimed that “the Disney Group” had paid millions of dollars in money to secure the passage of the SBCTEA. Yet, by clicking on the hot link, I discovered that the “Disney Group” touted by the author consisted of every single member of the Film, TV, Radio, Broadcasting and Music industries and every single dollar that all of them gave to all of Congress. Yes, that total would be in the millions of dollars. But it would be an unrealistic stretch to say that all of that money was because of the SBCTEA, especially where some of the groups included in the “Disney Group” are generally antagonistic towards each other, e.g. the Broadcasters and the Music industry.

So what’s truly going on here? Let’s look at copyright terms historically, and take Mickey out of the equation.

The first copyright statute gave a length of protection of only 14 years. ²⁸ In 1790, copyright duration was doubled to 14 years, renewable for another 14 years, for 28 years total. ²⁹ In 1831, copyright duration was increased by another 50%, ³⁰ to 28 years plus 14 years renewal. In 1909, copyright duration was increased by another 50% to 28 years plus another 28 years for renewal. ³¹ In 1909, Walt Disney was 8 years old. ³² He had nothing to do with the term of copyright quadrupling from 14 years to 56 years. Obviously, the members of Congress found sound reasons to do so.

Then, in 1976, the jump is made from a fixed term of 56 years to life of the author plus 50 years. As recounted previously on this blog, this change was necessary for the United States to become members of the Berne Treaty, which in 1971 had mandated all members to adhere to a minimum term of life plus 50. ³³

But isn’t that a tremendously long time? It depends on when you die, in relation to the creation of the work in question. Even when the term is life plus 70 years.

Let’s take the sad case of Kurt Cobain. At the time of his death, Nirvana had released two major label records, Nevermind in 1991 and In Utero in 1993. ³⁴ He died in 1994. ³⁵ The songs he wrote for In Utero will receive just 71 years of protection, only 15 more years than under the 1909 act. The posthumous songs released by Nirvana will not even see that length of time.

It is fashionable to theorize that having gotten copyrights extended 20 years, that the next time Mickey Mouse is about to go into the public domain, that there will be a renewed effort to extend copyright lengths in the United States. ³⁶ However, as previously pointed out on this blog, Mickey will go into the public domain in less than ten years from now and there has not been one solid proposal to extend copyrights once again. ³⁷ And the chance was surely there.

Consider the Trans-Pacific Partnership (TPP), a trade agreement recently reached between the United States, Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam. ³⁸ Part of the agreement was copyright term harmonization amongst the treaty members. Some, like Canada and New Zealand, had life plus 50 terms, the United States had life plus 70 and Mexico had life plus 100. ³⁹ Since the treaty was negotiated in secret, ⁴⁰ it would have been the perfect opportunity to further jack up copyright duration in the United States, should the desire be there. But it apparently did not happen. I say “apparently” because what is currently accessible is a leaked version of the document from WikiLeaks, ⁴¹ which may or may not be the true final agreement, so caveat emptor.

In Article Q.Q.G.6 of the TPP, copyright terms are harmonized at life of the author plus 70 if created by natural persons, and 70 years from first publication if created by a corporation or business (down from a previously leaked proposal of 120 years for corporate works ⁴²). So, New Zealand and Canada will have to come up to life plus 70. However, because the treaty notes that the Berne “rule of the shorter term,” ⁴³ which allows members not to enforce copyright term in excess of life plus 70, is still in effect, the U.S. (or any other treaty country) will not recognize Mexico’s life plus 100 regime. In addition, Article Q.Q.G.8 of the TPP enforces Article 18 of Berne Treaty in which works which have previously fallen into the public domain are not revived.

So, in the end, as journalists say, the deeper you dig into a story, the less interesting it becomes. Nothing here is particularly “shocking” or “outrageous,” especially where the United States, given an open opportunity to slip the TPP partners “a Mickey,” failed to do so.