Disney's War Against the Counterculture

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

Bob Levin from the December 2004 issue

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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"

Tired of going unpaid, the Pirates' original counsel had jumped ship. O'Neill's new lawyer, John Keker, responded to the contempt motion by reintroducing his client to Wollenberg as "an indigent cartoonist against whom Walt Disney Productions has a $190,000 judgment and whom Disney is now trying to put in jail." Keker and Lawrence Klein, Brand's lawyer, pointed out that the order the defendants stood accused of violating forbade O'Neill only from infringing upon Disney's copyrights. Under the present state of the law, as defined by the Copyright Act of 1976, however, "Communiqu�" was not an infringement but a fair use.

O'Neill's pictures were "different caricatures expressing different themes in dissimilar contexts fulfilling dissimilar purposes" than any drawings Disney had ever issued. O'Neill had added original dialogue, locales, personalities, and story lines. No Disney mouse had ever been angst-ridden or espoused such bitterness at his employer or the legal system. Most important, O'Neill had caused Disney no economic harm.

If O'Neill and Brand were not covered by the fair use doctrine, the respondents continued, they certainly were protected by the First Amendment. "Communiqu�" was a "political essay," exploring the "metaphysical distinctions" underpinning copyright law and dramatizing Disney's "draconian efforts" to muzzle O'Neill. Like any citizen, O'Neill had the right to mock Disney's prosecution of him. As a cartoonist, he had the right to use pictures to do so.

The June 28 San Francisco Chronicle reported that a settlement seemed likely. The terms were rumored to include no admission of guilt by, and no jail time for, O'Neill, though the damage award would remain in place. O'Neill's recollection of the final proceeding is positive. "It was great," he says. "The judge told 'em, 'I'm not gonna welcome this case into my court. If you bring him in on criminal contempt, he will bring up the First Amendment...I will not end my legal career as a judge that weakened the First Amendment....Now you knocked him down once, and he got up and hit you back. You knocked him down twice, and he got up and hit you back. You knocked him down three times, and he got up and hit you back. By now, you should have figured out he's Irish.'"

Laveroni remembers no such admonition. Keker says, "It's what Judge Wollenberg should have said. I have no recollection, so I can't deny it was said. There are some facts too good to check." He recalls that, during settlement discussions in the judge's chambers, Disney's lawyers insisted on a written promise from O'Neill to no longer draw Mickey Mouse.

"So I said, 'All right' and went out to Dan," Keker says, "and he drew a picture of himself in a barrel, with no clothes on, saying 'I won't draw Mickey Mouse.' I thought it was terrific. Wollenberg, who was a wonderful old guy, laughed and thought it was great; but Disney's lawyers went crazy, behaving like a bunch of pompous assholes. 'This shows how contemptuous he's being....Blah blah....'"

It all ended in 1980, with the Pirates agreeing to abide by the original January 1975 injunction to not draw Disney characters for public display any longer and with the full judgment Woodruff had recommended against them, although there is no evidence Disney ever collected any of it. Newspaper reports referred to "apparently secret agreements" which provided that contempt charges would be dropped and Disney would not attempt to collect damages as long as O'Neill didn't draw Mickey again. Disney was said to be out $2 million in legal fees from its campaign to scuttle the Pirates.

"Most Courts Are Too Sexually Ill at Ease"

More than a decade later, the U.S. Supreme Court, in the case of Campbell v. Acuff-Rose Music, finally addressed the Air Pirates' arguments. The rap act 2 Live Crew had released a parody of the song "Oh, Pretty Woman" in 1989, and Acuff-Rose, which owned the publishing for the song, sued for copyright infringement. A U.S. district court granted 2 Live Crew's motion for summary judgment and dismissed Acuff-Rose's suit. But the U.S. Court of Appeals for the 6th Circuit reversed, saying any infringement for commercial purposes was presumptively unfair and that, by taking "the heart of the original," 2 Live Crew had taken too much.

The entire Supreme Court disagreed. The Court's majority opinion, by Justice David Souter, reached its conclusion through a step-by-step analysis of the four factors of fair use set forth in the Copyright Act of 1976. Among its conclusions were that the crucial question about the infringing work's "purpose and character" was not whether it was commercial or noncommercial but whether it copied the original in order to "supersede" it in the marketplace or to "transform" it into something new. When the infringing work was a parody, this question became whether the copying cast new "light" upon the original, enabling the public to view it in a new way.

The Supreme Court decided that even the original's "heart" could be copied, so long as the parody did not become "a market substitute" for it. And the Court made clear that it did not matter if the parody depressed the sales of the original. Even a "lethal" parody that "kills demand" entirely may be a fair use. "Displacement" could be prohibited; "disparagement" could not.

In 30 pages, the Supreme Court mentioned Walt Disney Productions v. The Air Pirates only once--and unfairly, I believe. Justice Anthony Kennedy, in a separate concurring opinion, dismissed the Pirates as "profiteers who [did] no more than...place the characters from a familiar work in novel or eccentric poses."

Still, the Court eviscerated the Disney arguments that had swayed Judge Wollenberg and the 9th Circuit. Acuff-Rose, copyright authority Nimmer wrote, made market displacement "the most important, and, indeed, central fair use factor." If Air Pirates Funnies did not "satisfy the same purpose" as Walt Disney's Comics and Stories--and how, in God's name, could you conclude it did?--it was a fair use.

My optimism should be tempered. When I ask Boston University law professor Wendy J. Gordon, who writes often on copyright, if she agrees the Pirates would have prevailed under Acuff-Rose, she replies, "On general principle I would agree with you, except that I think most courts are too sexually ill at ease to give Air Pirates fair use."

Acuff-Rose gives cause for that skepticism. The Court stated it was not laying down "bright-line rules" and that future decisions should be made on a case-by-case basis. This caveat, coupled with Kennedy's less-than-sensitive take on Air Pirates Funnies, suggests that it left a lot of room for judicial bias and subjectivity. As Nimmer has written, parodists need to "continue to pay their insurance premiums."�