Disney's war against the counterculture: why a decades-old copyright case matters now more than ever.

• Author: Levin, Bob

DRAW A MOUSE, go to jail. That, it seemed, was the ultimate 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 an age of easy and ubiquitous copying, that case matters more now than ever.

On one side was the plaintiff, 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, back then, $750 million a year.

On the other side was the defendant, 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 curious strip Odd Bodkins. The strip involved primary characters who were waist less 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. Usually without drawn backgrounds, they and other bizarre characters traded philosophical bon mots that got more and more political (and to many, incomprehensible) until O'Neill was fired--more than once, but for good in 1970.

As the '60s revolution wore 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-Disney-like 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.

"Remember, Kids, Politics Is Pigshit"

O'Neill's partners in crime and eventual codefendants 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 tells me, "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 crew moved 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, bands 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...