Disney’s Bloody Attack on The Air Pirates

May 6, 2013
By

What follows in an excerpt from The Pirates and the Mouse: Disney’s War Against the Counterculture (Fantagraphics 2003) by investigative journalist Bob Levin. The book describes the so-crazy-it-must-be-true story of Disney’s attack on a group of underground cartoonists who, under the moniker The Air Pirates, set out to take down the Disney empire with satirical comics featuring Disney characters in decidedly un-Disneylike situations. The resulting legal battle took place over the course of 10 years, making its way all the way to the U.S. Supreme Court and back. Ultimately, Disney settled, but artist Dan O’Neill had to agree to stop depicting Disney’s copyrighted characters in his comics, dealing a blow to free speech.

Reprinted with permission from the author. ©2013 Bob Levin

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Draw a mouse, go to jail. That, it seemed, was the conclusion of a case that wended its way, throughout the 1970s, from the U.S. District Court for the Northern District of California to the Supreme Court and back. In our age of easy and ubiquitous copying, that case matters more than ever.

On one side was Walt Disney Productions. Its good-hearted, uplifting, family-oriented fare drew upon values — patriotism and Puritanism, consumerism and conformity — that the cultural revolution of the ’60s had called into question, and fed those values back to a public in need of reassurance, earning it $750 million a year.

On the other side was cartoonist Dan O’Neill. His career’s trajectory, though mostly downward, was, in its commitment to a free-spirited, convention-defying, bluenose-shocking, light-out-for-the-territory view of the personal and public good, just as resolutely mythic-American as Disney’s.

In 1963 the San Francisco Chronicle had made O’Neill, a skinny, bespectacled, 21-year-old college dropout, the youngest syndicated cartoonist in American newspaper history with his daily strip Odd Bodkins. Its primary characters were waistless but had arms and legs, neckless but had mouths and eyes; only one had a nose. “Potatoes with hands and feet,” O’Neill called them. They and other equally bizarre characters traded philosophical bon mots that became more and more political (and, to many, incomprehensible) until O’Neill was fired–more than once, but for good in 1970.

As the ’60s cultural revolution roared on, O’Neill decided that what America truly needed was the destruction of Walt Disney. So after the Chronicle canned him, he rounded up a ragtag band of rogue cartoonists who called themselves the Air Pirates, after a group of evildoers who had bedeviled Mickey Mouse in the 1930s. In 1971 they produced two issues of an underground comic book in which a number of Disney characters, particularly Mickey, engaged in very un-Disneylike behavior, particularly sex.

In 1979 O’Neill stood before the bar, 38 years old, unemployed, with total assets of $7, a 1963 Mercury convertible, a banjo, and the baggy gray suit he was wearing. Disney, which already had a $190,000 judgment against him, sought to have him fined another $10,000 and imprisoned for six months.

An artist asks, “Why have a fight if no one comes?”

O’Neill’s partners in crime and eventual co-defendants were Ted Richards (a 24-year-old who had been working for the underground newspaper the Berkeley Tribe), Bobby London (a 20-year-old, creator of Dirty Duck, also working for the Tribe), and Gary Hallgren (a 25-year-old psychedelic sign painter in Seattle).

O’Neill says the Air Pirates were born out of the “revolutionary fervor” of the times. “Those were the ’60s,” he says, “and it was everybody’s duty to smash the state. And we smashed a lot of it; but, you know, they smashed us back.” Still, the specific planks of his platform are elusive. “The main point,” O’Neill says, “was to buck corporate thinking. We just didn’t like bullshit.”

The Air Pirates settled into a kitchenless couple of rooms in San Francisco (later relocating to a former firehouse used by director Francis Ford Coppola for storage). Their two issues of Disney-parodying absurdity, Air Pirates Funnies, were published in editions of 15,000 to 20,000 copies in the summer of 1971.

The first cover, by London, showed Mickey Mouse piloting an open-cockpitted, propeller-powered plane with two sacks labeled “Dope” tied to its fuselage. The second, by Hallgren, had Mickey and Minnie on horseback, hands raised, confronted by a bat-winged, green-cloaked figure with a revolver in his right hand and the “Dope” sacks in his left. The contents were generic underground comix: sex, drugs, and revolutionary politics. (The least of these was politics. In fact, No. 1′s back cover instructed, “And always remember, kids, politics is pigshit.”)

The Air Pirates had gone after Disney partly because of its reputation for striking back. But Disney had not obliged. So O’Neill gave copies to a friend, “the gay son of the chairman of Disney’s board of directors.” He smuggled the comics into a board meeting and laid them out around the table like notepads. “We called them out,” O’Neill says. “I mean, why have a fight if no one comes?”

O’Neill got his fight.  It became one of the longest and most absurd in the history of attempts to use copyright to stifle artistic expression in America. The lessons learned from it are more relevant than ever to anyone who chooses parody as a way to speak to power, especially corporate power.

On October 21, 1971, the firm of Cooley, Crowley, Gaither, Godward, Castro & Huddleson filed half a pound of legal documents in the U.S. District Court for the Northern District of California on behalf of Walt Disney Productions. Disney accused the Pirates of copyright infringement, trademark infringement, unfair competition, intentional interference with business, and trade disparagement through the wrongful use of its characters. It stated that Disney, through “great effort and…large sums of money,” had created characters whose “image of innocent delightfulness…are known and loved by people all over the world, particularly children” and that the defendants’ efforts to “disparage and ridicule” these characters threatened to destroy Disney’s business. The complaint requested that Disney be awarded all of the Pirates’ profits, $5,000 for each copyright infringement, treble damages for the trademark infringement, punitive damages of $100,000 from each defendant, surrender of the offending books, and reimbursement of its attorneys’ fees.

Two weeks later, based on declarations by Disney’s attorneys that allowing the Pirates to continue to disparage Disney’s work would cause it “irreparable” harm through the destruction of “business, goodwill, and public image” whose monetary equivalent would be “difficult or impossible to ascertain” but which it was doubtful the Pirates could pay, the court granted a temporary restraining order barring them from any further production or dissemination of their comics, to stay in effect until a hearing on Disney’s motion for a preliminary injunction. That motion was scheduled to be heard by Judge Albert C. 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!”

In parody, “the reference to the original must be made clear and kept clear”

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!’”

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.”

The right “to use Mickey Mouse as a vehicle”

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 — ultimately — 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.”

Since visual representations of cartoon characters must be regarded as copyrightable, the Pirates were taking not a small portion of a larger whole but “the entire subject of the copyright.” Tatum called the Pirates’ First Amendment argument “nonsense.” If their logic were followed, all copyright laws would be “utterly nullified.” While they had every right to deliver whatever message they desired, they had no right “to use Mickey Mouse as the vehicle.”

Judge Wollenberg took the matter under submission. “If he wasn’t a fan of Disney’s at the start,” Kennedy says, “he was by the end. We may’ve driven him there by being so obnoxious and the work so profane. Jonathan Swift, he did not think we were.”

The most troublesome question for Wollenberg was whether Congress’ protection of “all copyrightable component parts” within a copyrighted work extended to cartoon characters. Disney had marshaled an impressive posse of funny-paper support for its argument that it did. Characters from Mutt and Jeff to Spark Plug (Barney Google’s horse) to Superman had had their copyrights protected in court decisions over the years. But an obscure 1954 decision by the U.S. Court of Appeals for the 9th Circuit (which includes California) cast doubt on the copyrightability of fictional characters divorced from stories. Warner Brothers Pictures v. Columbia Broadcasting System involved the rights to Sam Spade, which Dashiell Hammett had sold to CBS for a radio show. Since Warner Brothers had owned the rights to The Maltese Falcon, which featured Spade, it sued CBS, claiming ownership of the gumshoe.

The 9th Circuit held for the radio network. “The characters were vehicles for the story told,” it said, “and the vehicles did not go with the sale of the story.” Although the court did not explicitly rule all fictional characters uncopyrightable, the Pirates’ argument that the decision pointed to that conclusion struck Wollenberg with “considerable force.”

But he discovered “a narrow gap” in the decision’s reasoning through which Disney could wiggle. The 9th Circuit had said a character could be copyrighted if it “really constitutes the story being told,” and Wollenberg concluded that “the principal appeal [of Disney's books] to the primary audience of children for which they were intended lies with the characters and nothing else.”

Thus, the characters were copyrightable even under Warner Brothers. The question now became whether the Pirates had taken too much for a fair use. The 1956 9th Circuit case Benny v. Loew’s had declared that copying a “substantial part” of a prior work, even in parody, could be actionable. Wollenberg had already held characters to be the crux of Disney’s work. And since O’Neill had admitted copying Mickey and his cohorts “exactly,” a “substantial” taking was self-evident.

An artist declares, “I was a warrior… I would stay in the battle”

Which left the First Amendment to protect the Pirates. Wollenberg brushed it aside. To apply it would “obliterate copyright protection” anytime anyone asserted their infringement conveyed an idea. Besides, Wollenberg let slip that he had “some difficulty in discovering the significant content of the ideas which the defendants are expressing.” Wollenberg granted the preliminary injunction and ordered the Pirates to surrender all copies of the offending books and all material for making additional copies.

Gary Hallgren allowed judgment to be entered against him for $85,000. It was understood, without being memorialized in the official record, that as long as he abided by the other conditions, Disney would not attempt to collect. O’Neill says London and Richards were also supposed to settle. “It was my idea,” he says, “and they weren’t supposed to take the rap.” Richards says he didn’t settle because he still believed the Pigs to be part of a common heritage and he wanted to protect his rights to Zeke Wolf. He also felt a commitment to O’Neill. “I was a warrior,” he says. “I had received great training, and in return I would stay in the battle. But it was a mistake.” London remained defiant too.

Wollenberg had postponed the trial until August 11, 1975. On July 3 Disney lawyer Paul Laveroni made a motion for summary judgment, which Wollenberg granted. He permanently enjoined O’Neill, Richards, and London from infringing Disney’s copyrights and trademarks, and ordered a hearing before a federal magistrate, Owen E. Woodruff Jr., to determine the amount of damages and attorneys’ fees Disney should receive.

The U.S. Code gave courts two methods to assess damages for copyright infringements. The first, ordering the Pirates to turn over their profits to Disney and to reimburse Disney for its losses, would not work, Laveroni said, because the Pirates had made no profits and Disney could not measure its loss. The second method, applicable when either profit or loss is unknown, is to award damages of between $250 and $5,000 for each infringement. Accusing the Pirates of 38 infringements, Laveroni asked for $190,000, plus $27,292.50 for attorneys’ fees to date, $1,500 for future work, and reimbursement of his firm’s costs.

Kennedy’s reply, on behalf of O’Neill and London–Michael Stepanian, Richards’ lawyer, filed no opposing papers–asserted that the Pirates’ unrebutted evidence showed their profits to be nil and that Disney had presented no evidence of any loss–neither a decline in sales nor a diminution of its public image. Disney, therefore, deserved only a nominal award. The argument didn’t work. On March 5, 1976, O’Neill, London, and Richards were ordered to pay Disney the full amount Laveroni had requested. The Pirates appealed.

A “climate of passion and prejudice”

When Kennedy filed the Pirates’ opening brief with the 9th Circuit, he asked the appeals court to overrule Benny‘s substantiality standard, on which Wollenberg had based his decision. Parodists had to be able to copy substantially, he argued, in order to deliver “the shock of the unexpected.” He urged the court to adopt an approach advocated by UCLA law professor Melville Nimmer, author of the leading treatise Nimmer on Copyright, and assess whether the infringing work was apt to satisfy a potential customer’s desire for the original. The Pirates’ work was not going to replace Disney’s.

And even if characters were a copyrightable part of a copyrighted work, Tom Steel, a new lawyer on O’Neill’s team, argued, this did not mean they could not be copied. Every individual work bore only one copyright. This work should not then be “dissected into as many ‘copyrightable component parts’ as imaginative counsel can conjure up.” If that were permitted, any couplet, sentence, phrase, or name could be the subject of an infringement claim.

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 for the Pirates, 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.

Suddenly: “Ahhh, good! One more fight.”

“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 “Communique #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.

Sometimes, “There are some facts too good to check”

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, “Communiqué” 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. “Communiqué” 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.

Copying “the heart of the original”

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.”

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