Disney's War Against the Counterculture

Why a decades-old copyright case matters now more than ever.

Bob Levin from the December 2004 issue

(Page 4 of 5)

Laveroni, Steel argued, hoped to create a "climate of passion and prejudice" in which the court would take more extreme action than affording Disney financial relief. Disney wanted all criticism of its worldview extinguished. It wanted the Pirates' tongues torn out, their pens ground into dust, their pages burned.

A. Kirk McKenzie, another new lawyer on the Pirates' team, centered his oral argument around changes in the law wrought by the recently enacted Copyright Act of 1976. In that law Congress for the first time had specified factors for courts to consider in determining fair use: the nature and purpose (commercial or noncommercial) of the infringing work; the nature of the copyrighted work; the amount and substantiality of the copied portion in relation to the whole; and the effect of the infringing work upon the potential market for, or value of, the copyrighted work.

On September 5, 1978, the 9th Circuit ruled 3-0 that the Pirates were guilty of copyright infringement. The court agreed with Wollenberg that because the Pirates had other means of expressing their ideas, the First Amendment did not allow them to infringe Disney's copyrights. And while the court replaced Wollenberg's "substantiality" test for fair use with one allowing parodists to copy enough to "conjure up" their target, it found the Pirates had overreached by this measure as well.

Kennedy petitioned the U.S. Supreme Court for a writ of certiorari on behalf of O'Neill and London. (Stepanian did not join in this request for Richards.) The Copyright Act of 1976, Kennedy wrote, had made market value diminishment the prime requisite for denying fair use claims. Even though it did not apply to cases that arose before its passage, the act expressed Congress' view. The 9th Circuit should have paid "greater deference" to this view.

On January 22, 1979, the Supreme Court, without comment, refused to hear the Air Pirates' appeal.

"Doing Something Stupid Twice Is a Philosophy"

"I got the news sitting in the bathtub in this tiny house with no foundation," O'Neill remembers. "The bathtub is tilted; the water is cock-eyed; and Farley, my neighbor, hollers in the window, 'O'Neill, you just lost nine-zip.' I was feeling pretty low at this point. My second divorce had just hit. I had 700 pounds of hollering children and 340 pounds of mothers of those children attached to 3,000 pounds of district attorneys after me....I was thinking of jumping off a bridge. And suddenly--'Ahhh, good! One more fight.'"

"Doing something stupid once is just plain stupid," says O'Neill. "Doing something stupid twice is a philosophy. When you're down $190,000 in a poker game, you have to raise." The next step was obvious: Commit a new crime. If O'Neill defied the injunction, Disney's only recourse would be to have him held in contempt of court. "And then they have to put you in jail," he says. "For drawing a mouse? In the land of the free? No way."

O'Neill called Stewart Brand, publisher of the Whole Earth Catalog and, since 1974, Co-Evolution Quarterly. Brand knew about the Air Pirates case, and he put four pages in the spring issue of the magazine at O'Neill's disposal. O'Neill produced "Communiqu� #1 From the M.L.F." (Mouse Liberation Front). The comic opened with Mickey and Minnie happily married and living on a small farm in Mendocino County. They explained that, after 40 years in Hollywood, they had hit bottom, careers going nowhere, hooked on alcohol (him) and diet pills (her), having affairs, so jealous and embittered they had once almost put out a contract on Donald Duck.

Their children (Mortie and Ferdie) were so concerned that they hired "these bozo artists" (the Air Pirates) to kidnap and recondition them. Dosed with psychedelics and indoctrinated by sexuality seminars, Mickey and Minnie recommitted to each other, but Disney had the Pirates arrested and prosecuted. Now Mickey and Minnie wanted to speak out. They credited the Pirates with turning their lives around and defended the artists' right to parody Disney by exactly copying its characters. They demanded that Disney cease all legal actions against the Pirates and work with them in a joint venture ("rebuilding Cleveland, making films, whatever").

Mickey and Minnie noted that, while the court said "some" copying is permissible and "too much" is not, "No one, including the court, is sure how much is 'some.'" O'Neill demonstrates the absurdity of this standard in a way that Louis Brandeis with a Ryder van full of footnotes could not. "Is this 'some'?" he asks of a Minnie with an extra-fingered left mitt. "Is this 'some'?" he inquires of a hairy-torsoed Mickey with a lengthy, naked, articulated tail.

On April 20, 1979, Disney petitioned to dismiss its remaining causes of action against the Pirates for trademark infringement, unfair competition, and trade disparagement. With its injunction in force and its award of damages sustained, it was content to let things conclude.

Then the Quarterly hit the stands.

On May 2, Disney moved to have Judge Wollenberg hold O'Neill, Brand, and POINT (the business entity that owned the magazine) in contempt, fine them $10,000 each, and order them to pay its attorneys' fees and costs. The next day, it asked the U.S. Attorney's Office to prosecute them criminally.

"You Should Have Figured Out He's Irish"

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