that does not mean obscure works generate no utility, of course. Even a work that creates comparatively low levels of utility for society in general might generate a lot of utility for some people. It does mean that no serious utilitarian analysis can stop at pointing to relatively obscure works that someone would like to reproduce or adapt if the work fell into the public domain. The costs of failing to extend have to be considered, too.
For example, consider utilitarian analysis of an extension of the copyright term, which was at issue in Eldred v. Ashcroft.15 Allowing a work to fall into the public domain lowers the cost of reproducing and adapting it. Any gains from such reproduction or adaptation would have to be weighed against gains society could achieve by extending the term. If, for example, Disney’s management of the Mickey Mouse character created gains that could not be achieved if it could not manage the character (or, more properly, had little or no economic incentive to do so), such gains would be lost (and thus count as social cost) if the term were not extended.
For this reason, gains from extending the term could outweigh losses even if the extension benefited only a few very prominent works, precisely because many more people care about those works than care about obscure ones. The reverse could be true, of course; my point is only that the result is not obvious and therefore has to be analyzed rather than asserted.
One would expect large media firms to perform roughly this type of analysis. Firms that agree to back an extension of the term lose the chance to profit from exploiting popular works held by other firms that would fall into the public domain if the term were not extended. (Disney might have a crack at adapting Spider- Man, for example, or Marvel might try to toughen up Pooh.) Firms would balance those losses against any gain from an extension of the term for their own works. It is therefore too simplistic to say that big media firms have no interest in short terms. Lengthening the term creates (opportunity) costs for such firms, as well as gains.
This point holds in part for media firms’ approach to obscure works as well as to franchise works. Even a firm with a franchise character on the cusp of entering the public domain would no doubt be interested in obscure works that might enter the public domain and be suitable for adapting to create a new character. The firm therefore would have some incentive to monitor works on the cusp of the public domain, which I will call borderline works.
Information costs may distinguish the case of obscure characters from the case of franchise characters, however. By definition, franchise works are those everyone knows about and obscure works are those few people know about.