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"MESSING WITH THE MOUSE": COPYRIGHT, PARODY AND THE COUNTERCULTURAL WARS IN WALT DISNEY V. THE AIR PIRATES by TERENCE CHUA (Under the Direction of Peter Hoffer) ABSTRACT In 1971, Disney sued a group of underground comic artists calling themselves the Air Pirates, who published two comics portraying Walt Disney characters in sex and drug-related situations. The resulting case lasted 8 years and ended in a settlement where both sides claimed victory. This thesis uses the case to examine the development of the law of copyright and parody as a defense and demonstrate that the court tends to rule against the parodist if the work is offensive or obscene, although these are irrelevant concerns. It also examines the case itself and the cultural and personal forces motivating the parody. INDEX WORDS: Walt Disney, Air Pirates, Dan O'Neill, counterculture, copyright infringement, parody, fair use, underground comics "MESSING WITH THE MOUSE": COPYRIGHT, PARODY AND THE COUNTERCULTURAL WARS IN WALT DISNEY V. THE AIR PIRATES by TERENCE CHUA LL.B. (Hons), Queen Mary College, University of London, United Kingdom, 1994 Diploma in Singapore Law, National University of Singapore, Singapore, 1995 A Thesis Submitted to the Graduate Faculty of The University of Georgia in Partial Fulfillment of the Requirements for the Degree MASTER OF ARTS ATHENS, GEORGIA 2005 © 2005 Terence Chua All Rights Reserved "MESSING WITH THE MOUSE": COPYRIGHT, PARODY AND THE COUNTERCULTURAL WARS IN WALT DISNEY V. THE AIR PIRATES by TERENCE CHUA Major Professor: Peter Hoffer Committee: Laura Mason David Shipley Electronic Version Approved: Maureen Grasso Dean of the Graduate School The University of Georgia May 2005 iv DEDICATION To my family, both blood and chosen, for their love, faith and support. v ACKNOWLEDGEMENTS Writing is a lonely and often grueling process, but one can never reach the point where you just have to buckle down and face the beast without the encouragement, guidance and faith of others. I would like to thank my committee, most of all, for trusting me to do this thesis: Peter Hoffer, for convincing me to put my legal skills to proper use; Laura Mason for her suggestion to apply my life-long store of comic book trivia to academia, and for her comments on the cultural history paper that was the embryonic form of this thesis; and David Shipley, who, although not a member of the History department and not knowing me from Adam, generously agreed to give of his time and pointed me towards much needed resources in intellectual property law. I would also like to thank my fellow graduate students who patiently listened while I bored them with tales of Mickey Mouse and obscene parody, continued to persuade me that what I was doing was of some worth, and covered for me when I was away doing research. Next are my non-historian friends, both in Georgia and elsewhere, too numerous to name, who kept me sane through the process and lent a helping hand where necessary. "You know who you are," is a cliché, but in this case, it is true. I want to thank Bob Levin for providing copies of primary source material from his own research, and for answering my questions about his book. Finally, of course, thanks to Dan O'Neill for consenting to speak to me and giving me a fascinating and wide-ranging two-hour interview. This is his story, ultimately. vi TABLE OF CONTENTS Page ACKNOWLEDGEMENTS........................................................................................................ v LIST OF FIGURES................................................................................................................. viii INTRODUCTION...................................................................................................................... 1 CHAPTER ONE ........................................................................................................................ 8 1: "If there's any art, it's accidental."........................................................................................... 8 2: The Rise and Fall of the Comic Book ....................................................................................21 3. It All Started With A Mouse..................................................................................................31 CHAPTER TWO ......................................................................................................................42 1: The Disneyland Memorial Orgy ............................................................................................42 2: "To recall or conjure…" – Copyright law and fair use ...........................................................49 3: "Who makes the rules on laughing?" .....................................................................................66 4: "The critical intangible."........................................................................................................71 5: The Wollenberg decision.......................................................................................................74 CHAPTER THREE...................................................................................................................84 1: The times were a-changin' .....................................................................................................84 2: Summary Judgment...............................................................................................................89 3: "Uninhibited marketplace of ideas." ......................................................................................99 4: Waiting for the Man ............................................................................................................103 5: The Ninth Circuit ................................................................................................................107 vii CHAPTER FOUR...................................................................................................................112 1: Semiotic warfare .................................................................................................................112 2: Obscene or not ....................................................................................................................117 3: "Illustrative but not limitative."............................................................................................129 4: After "Pretty Woman" .........................................................................................................134 CHAPTER FIVE.....................................................................................................................142 1: "Doing something stupid twice is a philosophy." .................................................................142 2: "They set back parody twenty years." ..................................................................................150 3: Conclusion: Of Mice and Memory.......................................................................................154 BIBLIOGRAPHY ...................................................................................................................160 viii LIST OF FIGURES Page Figure 1: Page from "Silly Sympathies Presents the Mouse"......................................................41 Figure 2: Wally Wood, "Disneyland Memorial Orgy", 1967......................................................80 Figure 3: Robert Armstrong's Mickey Rat..................................................................................81 Figure 4: Roy Lichtenstein, "Look Mickey", 1961.....................................................................82 Figure 5: Air Pirates Funnies #1 and Mickey Mouse the Mail Pilot............................................83 Figure 6: George Herriman's Krazy Kat...................................................................................140 Figure 7: Kieron Dwyer's "Consumer Whore" Starbucks parody .............................................141 Figure 8: Page from "Communiqué #1 from the M.L.F." ........................................................159 1 INTRODUCTION In 1968, science fiction and television screenwriter Harlan Ellison was told by his agent that he had been hired by the Walt Disney Company. He initially found this incredible, as he was well known for being an irascible, anti-establishment figure, even in the science fiction establishment. However, he was assured by his agent that it was true – Disney believed that Ellison's brand of writing was suitable for a science fiction movie they were planning on producing. He arrived at the studios the next morning to find his own personal parking space, his own office complete with secretary and a set of number two pencils. Happily orienting himself to his new workplace, he and a group of other writers went for lunch at the studio commissary. Ellison decided to ingratiate himself with his new colleagues by performing an improvised "shtick" for them. Doing what he says was a perfect imitation of the voice of Mickey Mouse, he suggested, "at the top of his voice," that they do a pornographic Disney movie. He began to describe the filming of this hypothetical flick in a variety of other imitated voices, all the while wondering why the faces of his fellow diners were frozen "like when they see the monster creeping up behind the hero in a horror flick." What Ellison did not realize was that the Writer's Table was just behind the Producers' Banquette, which was occupied by Roy Disney and the other heads of the studio. He was oblivious to this until
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