Why is the Walt Disney Productions v. Air Pirates case important?

by Valerie Bodell

The Walt Disney Productions v. Air Pirates case is significant because O’Neill’s social commentary, in an unconventional medium, at a time when society was grappling with cultural changes, forced the court system and the public to consider the nature of parody, comics, the First Amendment, and mass media’s role in our perception of our world.  A brief summary of the case as described in Walt Disney Productions v. Air Pirates will lay a foundation for this discussion.  A group of cartoonists, led by Dan O’Neill, copied the images of seventeen Disney characters and used the same names as those characters in the Air Pirates Funnies in 1971.  While the illustrations are accurate copies, the adult situations depicted in the Air Pirates Funnies are distinctly different from Disney’s wholesome themes.  The circuit court judge ruled that the Air Pirates could have expressed their ideas without such exact reproduction of the Disney characters and upheld the copyright infringement ruling of the lower court (Disney v. Air Pirates 1978).  Bob Levin, attorney and author, relates that after nine years of legal machinations, in 1980 the Air Pirates agreed to stop drawing Disney characters (Levin 2004).  The judges involved attempted to find an appropriate balance between copyright and fair use of material in the service of free speech.


A superficial reminder of the cultural climate of the 1960’s and ‘70’s will elucidate O’Neill’s reasons for provoking Disney. Modernity’s industrialization, urbanization, capitalism and mass production brought changing roles of workers, family members and women.  Socio-political changes and continued advances in science and technology opened new horizons and opportunities.  As conservatives struggled to maintain the status quo, a counterculture movement gained momentum and provided an outlet for dissenting points of view.  Robert Harvey, author, critic and cartoonist, explains that after World War II, as the demand for superhero comics declined, romance, horror and crime comics gained in popularity.  He further explains that Dr. Fredric Wertham’s 1948 charges against comic books neatly explained the reason for the rising youth crime rate, fed the United States’ cold war fears of Communism and attributed the weakening of the traditional family unit to a deterioration of time-honored conservative values.  Wertham fomented public outrage over sagging morals and explicit graphics.  The comics industry avoided government regulation by establishing the Comics Code Authority (CCA) in 1954.  Many distributors would only carry comics with the CCA seal and numerous publishers went out of business (Harvey 1996, 40-43).


In this climate of change and tension between traditionalists and modernists O’Neill was one of many outspoken proponents of progress.  Jeet Heer, a Canadian journalist with The Boston Globe, describes O’Neill as a habitual agitator who used his comics as a medium for political commentary to the point of being dropped by the newspapers (Heer 2003).  Levin and Heer relate that O’Neill then moved to underground comix where he could have free rein.  In 1971 the Air Pirates published two issues of Air Pirates Funnies in response to what O’Neill saw as the puritan, conformist outlook of American mainstream culture embodied in Disney’s Mickey Mouse (Heer 2003; Levin 2004).  Wendy Gordon, A lawyer at Boston University’s School of Law, and Harvey identify O’Neill’s efforts as part of the 1960’s counterculture movement exposing the real world and its vices to stimulate  the human rights movement and increase tolerance for sexuality as a natural part of life (Gordon 1993; Harvey 1996, 140).  Levin points out that O’Neill was making a statement.   Thus when Disney did not take action at first, O’Neill forced their hand by smuggling copies of Air Pirates Funnies into a board meeting (Levin 2004).  Further, when Disney was about to settle in 1979, O’Neill violated the restraining order with the Mouse Liberation Front Communiqué.  O’Neill used the Communiqué to reiterate his message, point out the vagueness of the legal definition of fair use and revel in the fact that by winning the copyright dispute Disney proved that O’Neill’s depictions of Mickey and Minnie’s sexual relations and drug use were part of the real Mickey Mouse’s history (Levin 2004; Communiqué 1979, 4).


Publicity generated by O’Neill brought social issues and underground comix to wider public notice, which eventually led to changes in mainstream comics industry.  Harvey points out that in the early 1970’s in conventional comics businesses publishers owned the characters and paid creators by the page.  In contrast, underground publishers paid creators a flat rate, sometimes offered profit sharing and creators owned their characters and sometimes their original art. Pressure from expanding underground production pushed mainstream publishers to adopt more labor friendly practices.  In addition, sales of underground comix through head shops led to the increased establishment of direct sale shops (Harvey 1996, 141-144).  Through championing the cause of free speech, O’Neill furthered the recognition and acceptance of comics and comix.


One of the issues this case raises is the question of whether society views comics as a commodity or as art.  In other words:  Are comics a product with no qualitative difference between producers, or do they make individual statements and illicit reactions from the reader?  Harvey explains that comics were originally published in newspapers, as a commodity (Harvey 1996, 16).  

 

Martha Buskirk, an instructor at Montserrat College of Art in Beverly, Massachusetts, discusses the issue of image as a commodity and explains Disney’s desire to profit from their marketing investment through film and merchandise revenues that depend on the particular image associated with Mickey Mouse (Buskirk 1992, 84, 93-94).  Buskirk further points out that many artists appropriate images, objects and tools from culture and mass media, but only those few who gain notoriety attract legal attention.  Media interest ensures that a larger audience becomes aware of the artists’ work and the opportunities for economic gain increase (Buskirk 1992, 107-108). 

 

Michael Dean, a journalist for The Comics Journal, writes that in the case of Disney v. Air Pirates the court viewed the images as commercial products (Dean 2003).  Levin explains that the Air Pirates lost the district court case because Judge Albert Wollenberg, interpreting comics as a commodity, ruled that they had copied the visual characters exactly.  Even though the themes were different, the judge did not see a meaningful statement in the Air Pirates’ work (Levin 2004).    Judge Cummings, the circuit court judge in the appeal from the district court, found that the Air Pirates took more than was necessary of both the appearance and character to represent Mickey (Walt Disney v. Air Pirates 1978).  Heer points out that in addition to viewing comics as a commodity, the judges may have been prejudiced against the medium of comics because of Dr. Wertham’s crusade (Heer 2003).  Levin and Heer agree that working in the medium of comics, exploring sexual themes and the irreverence of the defendants hurt the Air Pirates’ case (Heer 2003; Levin 2004).


Heer explains that the public only began to accept comics as art with the widespread acclaim of Spiegelman’s Maus (Heer 2003). Harvey places the publication of Maus in the late 1980’s, and its garnering of the Pulitzer prize in 1992 (Harvey 1996, 245).  After Maus, in the 2003 Jonah Hex case in which the Winter brothers sued DC Comics, Dean summarizes the California Supreme Court ruling in favor of DC comics by explaining that though the images were similar, and the first names the same, the characters were different.  Dean views this as a general acceptance of comics as an independent creative art form with a literary component (Dean 2003). 


The Walt Disney v. Air Pirates case set a precedent in that it forced the court to weigh free speech against copyright in a case involving a cartoon parody.  A quick review of other cases involving parody illuminates the courts’ progress in defining fair use.  In the 1964 case of Berlin v. E.C. Productions the court limited the amount a parodist could legally copy to no more than necessary to “conjure up” the object.  This case involved Mad Magazine’s parodies of fifty-seven popular songs including Irving Berlin’s “A Pretty Girl is Like a Melody” (Berlin et al. v. E.C. Publications 1964). 


Levin discusses another example involving music in the case of Campbell v. Acuff-Rose Music in 1989.  The U.S. Supreme Court ruled in favor of Campbell in a case involving a rap parody of “Oh, Pretty Woman”.  2 Live Crew transformed the song into something that did not replace the original in the market place and the Supreme Court decided this was fair use. 


In a third case, Rogers v. Koons, in 1992, Koons claims to have created a subtle parody of bland American culture.  The court ruled that when Koons copied Rogers’ photograph exactly in a sculpture, photographs of the sculpture could then replace Rogers’ original postcard (Rogers v. Koons 1992). The judge based the decision on the fact that the new work could replace the demand for the original. 


These cases clarify the court system’s changing determination of fair use.    The Berlin case exemplifies a judgment based on a vague notion of the amount of taking (Walt Disney v. Air Pirates 1978).  The Acuff-Rose and Koons cases, on the other hand, illustrate judgments based on whether a new work will fill the demand for the original.  If the judges in Disney v. Air Pirates had used the later criteria, the adjudication would have gone in favor of O’Neill.  The bawdy Air Pirates Funnies could never fill the demand for Disney’s innocuous Mickey Mouse cartoons.   


An examination of the full range of factors involved in and surrounding the Disney v. Air Pirates case yields a deeper understanding of the case and its unique role in comics history.  O’Neill’s depictions of Disney characters in realistic situations and his insistence on publicly displaying his message through a lengthy legal case, brought media attention to contemporary social problems, the medium of comics, and the court system’s interpretation of First Amendment issues.

 
Alex Goldman, a reporter writing for The Comic Book Legal Defense Fund, illustrates that free speech, First Amendment, copyright and fair use issues are still questions of concern.  His May 12th, 2010 article describes scholarly debate surrounding Supreme Court nominee Elena Kagan’s record on First Amendment issues (Goldman 2010).


Modern commodification of images, heritage and even our own individual pasts is offset by the acceptance of the importance of each individual statement.  The internet allows each connected person to easily, quickly and cheaply express themselves to a wide audience.  Widespread electronic access takes production out of the hands of industry and away from government regulation.  This situation takes the freedom of the underground movement into the cyber world. 


References
Buskirk, Martha.  1992.  Commodification as censor:  Copyrights and fair use.  October 60 (Spring):  82-109.  http://www.jstor.org/stable/779036  (accessed June 9, 2010).

 

Dean, Michael.  2003.  California Supreme Court rules Jonah Hex comic entitled to First Amendment protection.  The Comics Journal 254.  http://archives.tcj.com/254/n_winters.html (accessed June 14, 2010).

 

Goldman, Alex.  2010.  Supreme Court nominee Elena Kagan and the First Amendment.  Comic Book Legal Defense Fund. http://cbldf.org/legal-news (accessed June 14, 2010).

 

Gordon, Wendy J.  1993.  A property right in self-expression:  Equality and individualism in the natural law of intellectual property.  Yale Law Journal 102, no. 7 (May):  1533-1609. http://find.galegroup.com/gtx/retrieve.do?contentSet=IAC- (accessed June 14, 2010).

 

Harvey, Robert C.  1996.  The art of the comic book:  An aesthetic history.  Jackson:  University Press of Mississippi.

Heer, Jeet.  2003.  Free Mickey!  Boston Globe.  September 28. http://www.boston.com/news/globe/ideas/articles/2003/09/28/free_mickey (accessed June 9, 2010).

 

Irving Berlin et al. v. E.C. Publications, Inc. 329 F. 2d 541 (1964).  UCLA Law and Columbia Law School.   http://cip.law.ucla.edu/cases/case_berlin_ec.html (accessed June 21, 2010).

 

Levin, Bob.  2004.  Disney’s war against the counterculture:  Why a decades-old copyright case matters now more than ever.  Reason Magazine (December).  http://reason.com/archives/2004/12/01/disneys-war-against-the-counte (accessed June 9, 2010).

 

O’Neill, Dan.  Mouse Liberation Front communiqués.  http://www.danoneillcomics.com/crimes/index.htm (accessed June 9, 2010).

 

Rogers v.Koons.  960 F.2d 301 (1992). National Coalition Against Censorship. http://www.ncac.org/art-law/op-rog.cfm (accessed June 14, 2010).

 

Rubenstein, Anne.  1998.  Bad language, naked ladies, and other threats to the nation:  A political history of comic books in Mexico.  Durham:  Duke University Press.

 

Walt Disney Productions v. Air Pirates.  581 F.2d 751 (1978).  http://faderesistant.com/pics/penn/Walt%20Disney%20Productions%20v.%20Air%20Pirates%20(581%20F.2d%20751).pdf (accessed June 9, 2010).