The Illustrated Story of Copyright
How Dan O'Neill "won" the Air Pirates case
(p. 198 of the book)
Anyone wanting the definitive
story of Dan O’Neill and the Air Pirates should read the detailed two-part account
by attorney Bob Levin, “Showdown: The Pirate and the Mouse,” printed in The
Comics Journal, issues 236 and 239, August and November, 2001. It's got lots
of pictures of O'Neill's work, including images from Air Pirates. I’m told
that it will eventually be expanded into a book; it’s incredibly informative
and entertaining as is. The reference to me is reprinted at the end of this
I had obtained the permission of Disney Enterprises to reprint the Disney images and the O'Neill parodies involved in the Air Pirates case, and didn't believe I had to obtain the permission of the defendants who were found to have infringed. Nevertheless, I thought it would be interesting to track down Dan O'Neill and get his side of the story. After some searching on the Internet, I finally reached him by phone in California.
I told O'Neill that the case was a major one on the issue of fair use in copyright, and was included in many of the leading treatises and casesbooks.
He replied that he felt particularly proud at beating Disney, and that the case was a major victory for freelance cartoonists. The conversation continued something like this:
ED: Uh, Dan, the case is in the casebooks because you got clobbered. How was it a victory for you?
DAN: There are two main ways. First, I didn't actually go to jail.
ED: That's not exactly a victory, Dan. Most people don't go to jail, and they don't exactly consider that a victory.
DAN: Well, I was the one who nearly went to Leavenworth. When they came after me, I contacted my cartoonist buddies and started a campaign called the Mouse Liberation Front. I'm only one artist, but I got 1,000 artists to each do one, thirty tons of art appeared in days. Disney was trying to get me for contempt of court. The judge was quite interesting, he told me he thought they had a case, and strongly urged me to settle. Finally Disney surrendered, about as I was to be hauled off to the federal penitentiary, and signed a peace treaty with the Mouse Liberation Front.
ED: Okay, so you didn't go to jail. You said two ways, how else was the case a victory for you?
DAN: Well, back in the '70s, I had a strip called Odd Bodkins. It was real successful, it was picked up by the syndicate. But then it got too controversial for them, and they wanted to withdraw it. I wanted to publish a book of the strip, and I discovered that they actually owned the copyright! I was just a young kid, and I didn't realize they owned the strip, not me. Then I figured out how to get them to give it back.
ED: Yes? How did you do that?
DAN: Well, I started putting Disney characters into the strip. At first it was just a few in the background, but it ended up being 28 Disney characters in the strip.
ED: [Pause.] Yes?
DAN: Then there was Air Pirates. And when Disney came after me, I told the syndicate that since they owned the strip, the suit should be against them. They would have to defend against Disney.
ED: [Pause.] Yes?
DAN: Well, they gave it back. So now I own Odd Bodkins, and I'm still writing it, and I've got a website and everything.
ED: [Long pause.] You mean to tell me that your using the Disney characters was all just a ploy to get back your own creation?
DAN: Of course.
ED: And you mean to tell me that you knew from the beginning, and that's why you did it?
DAN: Yes. But that's my story, that's my book. Don't write that book.
ED: [Long pause.] Don't worry, that's not what my book is about. There's just a mention of Air Pirates, but my book is about copyright.
DAN: Well, maybe your book will promote mine, and maybe mine will promote yours.
ED: I really hope you write that book, Dan, it would certainly be interesting.
I have no way of knowing if O'Neill was as in control of the situation as he seemed to believe. However, I did start buying some of the Odd Bodkins books. Not only are they brilliant, but they do indeed have little images of Disney characters, sometimes just in hints (like in a cloud formation), sometimes more prominent. And the rights to Odd Bodkins are now owned by Dan O'Neill himself. Visit his website at www.oddbodkins.com. Among other things, you'll find under "crimes" his "Communiqué," a hilarious four-page "explanation" of fair use in the context of the Air Pirates case. (What you see is a poor low-resolution image: track down a better copy, if you can, from an issue of the Co-evolution Quarterly.)
Here's how the above
account ended up in Bob Levin's article in The Comics Journal. (In this account,
"I" refers to Bob Levin, the author of the article.)
For [a legal judgment]
I required objective, outside, expert help.
Edward Samuels, a professor
at New York Law School, has taught Disney vs. Air Pirates for 25 years.
Recently, while finalizing his The Illustrated Story of Copyright,
he had tracked down and spoken with O’Neill and O’Neill had recommended
him to me as someone who could authenticate the significance of his litigation.
Actually, O’Neill had
told me his name was “Levine” and that he taught at New York University
Law School, a different institution entirely. After the dozen misdirected
phone calls this misdirection necessitated, I knew I had the right fellow
when, recalling their conversation, his voice took on the starry-eyed, wobble-kneed
affect of someone who has stepped off the merry-go-round just after it had
been floored. “I was flabbergasted,” Samuels said. “He told me he had won
the case. ‘No, Dan,’ I told him, ‘you lost.’ ‘No,’ he said, ‘I won.’ ‘No,
you lost.’” There was a pause while I imagined the professor wishing for
the steadier terrain of first-year students and The Rule in Shelly’s Case.
“They set parody back 20 years.”
do you think the court’s decision was correct?” I said.
“It was absolutely correct.
Even today, when the pendulum has swung back in favor of parody, I don’t
think the result would be any different. This wasn’t MAD. This wasn’t
Weird Al. They went far beyond the acceptable, and they would have kept
going too far until they got the response they wanted. They lifted specific
frames and story lines practically literally from the original books. They
defamed Mickey Mouse. It was part of the culture then. People going too
far. People pushing the envelope. They made damn good comics, and reading
them gave you the thrill of being a co-conspirator; but did they go too
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