In “The Pirates and the Mouse: Disney’s War Against the Counterculture,” Bob Levin explores the underground comix scene, focusing on the Air Pirates group – Dan O’Neill, Ted Richard, Bobby London, Gary Hallgren, and Shary Flenniken – and their work to push the boundaries of what the comic book medium could do. Their efforts eventually put them in conflict with both U.S. copyright law and Walt Disney Studios, defining the boundaries of a once-unfettered underground.
Discussing the state of underground comix in the 1970s, Levin writes, “By 1970, significant UG publishers operated in New York, Chicago, and Milwaukee. But the Bay Area remained the movement’s center” (pg. 40). He continues, “The UG world could not have differed more from that of traditional comic books. If it took notice of the Comics Code Authority at all, it was as a checklist to discover additional conventions to defy. Since mainstream outlets would not handle its comics, the UG developed its own distribution system, relying on independent book stores, record stores, and, most heavily, ‘head’ shops” (pg. 40). According to Levin, O’Neill was swept up in the “‘revolutionary fervor’ of the times,” though his fixation on Mickey Mouse and Disney flaunted the underground’s ethical focus on “the perfection of individual style over ripping off someone else’s” (pg. 57). Writes Levin, “The Air Pirates had gone after Disney partly because of its reputation for striking back. But Disney had not obliged” (pg. 65). Desiring a fight, O’Neill found ways to get copies from one person to another so that, eventually, they ended up in the hands of one of Disney’s board member’s sons.
The battle came down to Disney’s extensive copyright enforcement versus the Air Pirates’ claims of fair use (pgs. 91-104). Levin writes, “With characters copyrightable, the question now became: Had the Pirates taken too much for a fair use” (pg. 110). He continues, “Having found that Disney was entitled to an injunction on the basis of a copyright infringement, [Judge] Wollenberg found it unnecessary to address Disney’s trademark infringement and unfair competition claims. He granted the injunction and ordered the Pirates to surrender all copies of the offending books and all material for making additional copies” (pg. 111). Things dragged out in discovery, though. According to Levin, “On December 3, 1974, an informal settlement conference was held before Judge Wollengerg. Stepanian, Morse, and Kennedy, now representing both O’Neill and London, appeared for the Pirates. Turner was represented by Woods. Wollenberg ordered the defendants to provide Disney with information about their financial status so meaningful negotiations could take place” (pg. 124). Turner and Hallgren “agreed to turn over any plates, molds or prints from which copies of these comics could be made. Both agreed to refrain from further infringements upon Disney trademarked or copyrighted property. And both allowed judgement [sic] to be entered against them for $85,000. It was understood, without being memorialized in the official record, that as long as they abided by the other conditions, Disney would not attempt to collect. Turner also had to destroy the unsold Air Pirates books he had in stock” (pg. 124). Disney then requested a summary judgment against the other defendants and Wollenberg found in favor of their copyright and that the Air Pirates’ work exceeded the bounds of fair use (pgs. 187-189).
While the appeals process went back-and-forth, O’Neill continued thumbing his nose at Disney. Levin writes, “While mocking Disney, he was making political points. He was tackling social issues. He was a cartoon-drawing parodist, not a pamphlet-pushing polemicist; but he demanded the same First Amendment that shielded the most astute, the most erudite, the most thoughtful among us. And by so doing, he asserted his middle-finger-extended self into the face of the most august, blackest-robed nay-sayers in the land. (I mean, three freaking tiers of the federal judiciary had already told him to bloody well behave without a dissenting vote.)” (pg. 206, parentheses in original). Disney moved to have O’Neill held in contempt (pg. 214). In the end, Disney negotiated a deal that got O’Neill to cease drawing Mickey Mouse while they acknowledged they could never collect the money owed, roughly $2,000,000 (pg. 223).
From there, Levin traces the history of “Walt Disney Productions v. The Air Pirates” both in the popular consciousness and in other case law, following as well the histories of the various Air Pirates from the 1980s to the current day. He juxtaposes their struggles against Disney’s own brief nadir and meteoric rise of the 1990s. The book, then, is not just a legal history but a story of an American cultural landscape in which corporate and anti-corporate forces battled for the meaning of free expression.
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