Comics Copyrights in Disney v. The "Air Pirates"
Legal Battle Over Mickey Mouse Comic Book Parody Spanned a Decade
Mar 28, 2009
In 1971, cartoonist Dan O'Neill gathered artists Ted Richards, Gary Hallgren, Shary Flenniken, and Bobby London in a San Francisco studio. Considering Walt Disney cartoons symbolic of what was wrong with society, he encouraged the group to create two parodies of Disney comic books, which would become notorious in the case Walt Disney Productions v. The Air Pirates.
Air Pirates Funnies #1 and #2 featured a number of panels closely copied from Disney comics (and others, such as Krazy Kat). Both issues depicted numerous Disney characters, including Mickey and Minnie Mouse, having sex and doing drugs. The Walt Disney cartoon style was mimicked, and the names of characters were not changed. Between 15–20,000 copies of the comics were printed and sold through “head shops” and other places where underground comics were distributed at the time.
Dan O'Neill Provokes Walt Disney Productions into Legal Action
At first Walt Disney Productions took no notice. But when O’Neill, through an intermediary who worked for Disney, had copies of APF #1 smuggled into a company board meeting, Disney had its lawyers begin litigation. They sued O’Neill and his group, who by now were known as the “Air Pirates,” for infringement of copyright and other trade-related offenses.
In mid-1972, Disney won a motion to put an injunction on the Air Pirates, barring them from publishing any more parodies of Disney characters until the case was resolved. In this initial ruling, U.S. Federal Judge Albert C. Wollenberg found that the plots of Disney comics were “quite subordinate to its characters”.
Their postures and expressions, Wollenberg continued, often conveyed more of significance than their speech or the accompanying text. Comics characters were based on how they looked, not how they acted. In this, Wollenberg ignored the recent "conjure-up" doctrine set by Berlin v. E.C. Publications (1964).
Except for Ted Richards, Bobby London, and (not surprisingly) Dan O’Neill, all those named under Disney’s action had settled out of court by late 1974. The court later granted Disney a summary judgment before the scheduled trial date in 1975.
Judge Wollenberg Rules in Favor of Walt Disney Productions
Judge Wollenberg held that the Disney characters were copyrightable for the reasons outlined when he had granted the 1972 injunction, and stated that the First Amendment right to expression only applied to the fair use of such material. Wollenberg said that “a parody may not consist of a ‘substantial’ taking or ‘outright copying’ of a copyrighted work”.
Since the Air Pirates admitted that they had copied the look of the Disney characters as closely as possible, no more was needed for infringement, though the stories and personalities were nothing like what one would expect in a Disney comic. Wollenberg therefore found the Air Pirates guilty of copyright infringement.
He also found them guilty of trademark infringement and trade disparagement, but that part of the judgment was overturned on appeal in 1978, as there had been no evidence presented that there had been any public confusion between the Air Pirates and Disney comics.
An agreement between O’Neill and Walt Disney Productions was at last reached in 1980, nearly nine years after the original offending comics had been published. Until then, O'Neill had continued to publish cartoons in violation of court orders, and had appealed (unsuccessfully) to the Supreme Court. The circumstances of the settlement are unclear, and the details remain undisclosed.
Legal Scholars React Unfavorably to the Air Pirates Decision
Meanwhile, Wollenburg's decision remained controversial. The Harvard Law Review commented in 1984 that Air Pirates showed a lack of a “consistent and predictable formulation of the parody defense” which in effect “chilled parodists’ literary freedom.” (vol. 97, no. 6, p. 1405) This was all the more egregious due to the lack of economic harm, protection against which is the principle underlying copyright laws.
The Review went on to say that decisions like Air Pirates "seem comprehensible only as veiled attempts by judges both to vent their outrage at mimicry that they consider tasteless and offensive and to vindicate the moral rights of the authors. Admittedly, parody’s sometimes stinging effect may dampen the creative efforts of some original authors, but such disincentive is subjective, speculative, and properly beyond the reach of American copyright law."
Wendy J. Gordon agreed in 1993, writing in The Yale Law Journal that the most effective critique of Disney comic books could only come from the same medium, another comic book:
"The Air Pirates could have expressed their unease with Disney by writing a treatise explaining that the suburban idylls of Mickey Mouse and his friends omitted much of reality. But such a treatise would have been incapable of loosening the Disney characters’ hold on the public’s imagination." (vol. 102, no. 7, p. 1603)
The Legacy of the Air Pirates Case
Although the Air Pirates case had long since concluded, it and its controversial verdict would continue to stand as a precedent for many years. Not until the Gaiman v. McFarlane (2004) decision would copyright, as applied to comic book characters, be redefined by a court with a better understanding of the comic book medium.
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