Wollenberg on March 10, 1972.
The day before the hearing, the Pirates held a press conference at a converted Victorian on Eddy Street belonging to the hip law firm of Rohan & Stepanian. O'Neill's lawyer, Michael Kennedy--who had previously defended draft resisters, alleged cop killers, and Timothy Leary--says the purpose of the conference was to rally public support for the Pirates' position: "The line belongs to us. If it ends up a mouse, it's still a line. We have absolute freedom to copy anything as long as we add to it."
Newspaper pictures of the event show O'Neill in cowboy hat, wire-rimmed glasses, and gunslinger moustache. Hallgren is smiling, moderately moustached, a Mr. Zig Zag patch sewn onto his jacket sleeve. Richards has shoulder-length hair, a cowboy hat, and a rakishly angled cigar. London's hair flops over one eye. At one point, with television cameras rolling, he recalls yelling, "We're guilty! We're guilty!" while the lawyers yelled, "Cut! Cut!"
"There's a Guy With a Banana!"
O'Neill entered the U.S. District Court for his first appearance in his "Jack Palance-Shane outfit": black hat; buckskin jacket; gun belt with holster. "On the elevator," he recalls, "I tie down the holster so they can see it sticking out under my jacket and step out on the 18th floor like I'm gonna draw. The U.S. marshal leaps over his desk, grabs me by the throat, and hoists me in the sky. I'm strangling; and he whips open my coat, and in the holster is a banana...He's yelling, 'There's a guy with a banana!'"
To obtain its injunction, Disney had to convince Judge Wollenberg it was likely to win the eventual trial and that it would be severely damaged if the Pirates were allowed to publish their comics in the interim.
The Air Pirates' attorneys interpreted the stories Disney vilified in terms so positive and respectful that any reader who had not been immediately awe-struck gazing upon them felt like a Philistine deserving David's stone. Richards' "Zeke Wolf," for example, turned out to be a response to Disney's repeated portrayal of poor Southern whites as "vicious and ignorant simpleton[s] with nothing to do but commit crimes," a slander which had kept North and South from uniting against "the true cause of Southern problems...ruthless exploitation...by a cabal of powerful interests...the banks, the media, and the military [The Three Pigs]."
O'Neill's "The Mouse Story," characterized as a tale of "the awakening within Mickey...of an awareness of his sins and his subsequent transformation and redemption," received the most impressive revisiting. Mickey, the lawyers noted, is initially presented as "depressed." (The Pirates' attorneys voiced regret at having to quote the exact language of his discontent: "Why won't anybody fuck me?") He is then set upon by an alliance of old foes, which Disney had derived from various offensive stereotypes: the Jewish lawyer (Sylvester Shyster), the French-Canuck (Pegleg Pete), the trashy Southerner (The Big Bad Wolf).
Having dressed the Pirates' work appropriately for court, the defense then legitimized their pedigree. It established them not as nose-thumbing smut peddlers but as respected parodists, following in the footsteps of Cervantes, Shakespeare, and Swift. All humor, it philosophized, is based on "conflict between the expected and the actual," and parody juxtaposes a "known existing work" against "something else." To succeed, "the reference to the original must be made clear and kept clear." The Pirates were engaged in "aesthetic and political criticism of a deeply serious nature."
With respect to copyright infringement, the defense argued that while an entire work can be copyrighted, characters within it cannot. Even if they could be, the Pirates were protected by the "fair use" doctrine, which permits individuals the right to freely reproduce limited amounts of copyrighted material in limited situations. By restricting their copying to the visual representation of the characters, the Pirates took the minimum necessary for their parody to succeed. They had then created an original work, distinct in plot, dialogue, setting, themes, and character personalities from anything Disney had ever done.
Moreover, the Pirates were not trying to pass their comics off as a Disney product. They aimed at a different market: adult hippies, not children. They sold through different outlets: head shops, not newsstands. The Disney-buying public was unlikely to have its craving for Mickey Mouse satisfied by an issue of Air Pirates Funnies. Disney would not lose a dime.
The Pirates also claimed protection for their work via the First Amendment. Mickey, they argued, had become "part of our national collective unconscious," as well as an internationally known symbol of American culture and power. While he may once have been accurately perceived as "innocent and delightful," he now could be viewed as "a reactionary force...[devoted to] Establishment values," "a partisan of elements and values in American government and society which the Air Pirates oppose."
"A Potpourri of So-Called Principles"
Each Pirate filed a sworn statement of purpose. Richards said: "'The Wolf and the Pig' has existed within folk literature for well over five hundred years. Walt Disney studios cannot claim exclusive ownership of an old folk tale." O'Neill's affidavit was the lengthiest and the most damaging: "Disney presented Mickey Mouse to us when we were children. As cartoonists and adults, we approach Mickey Mouse as our major American mythology....I chose to parody exactly the style of drawing and the characters to evoke the response created by Disney. My purpose in using the Mouse as a character is not to destroy the Disney product, but to deal with the image in the American consciousness that the Disney image implanted."
Disney lawyer Frank Donovan "Sandy" Tatum pointed out that for its copyright to be meaningful, the characters within these works had to be regarded as "copyrightable component parts," for they had "achieved identification independent of the cartoon strips, books, and pictures in which they have appeared." Disney had spent "millions of dollars and years of effort" developing these characters. Tatum dismissed fair use as "a potpourri of so-called principles...most of which are virtually meaningless." Whatever it meant, by no stretch of the imagination could it embrace the "perverted," "obscene nonsense" the Pirates had authored. The term fair simply could not be applied to a use whose purpose was "to defame," "to destroy," "to degrade and disparage all that Disney has done."
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