It may come as a surprise to many that the invention of copyright during the 17th century had less to do with profit than profanity. The English Licensing Act of 1662 made it illegal to publish anything without first securing a license from the appropriate authority. The act was designed to prevent the printing and sale of “heretical schismatical blasphemous seditious and treasonable books, pamphlets, and papers.” (I lifted that last sentence verbatim from a copyrighted source.) The idea at the time was to affix ownership to all publishable materials in an attempt to regulate—er, censor—any and all potentially subversive speech. The copyright, then, was both a means of affixing ownership to the written word and a form of rhetorical regulation.
Today, individuals and institutions reap huge profits from the ownership of a copyright—but don't let the contemporary fiduciary aspect of the copyright conceal its otherwise latent political objective. The copyright is still a powerful tool used to maintain the status quo while staving off those forces that threaten social revolution.
Just ask Dan O'Neill.
In October 1971, Walt Disney Productions filed a complaint against O'Neill in a United States district court accusing him of copyright infringement, trademark infringement, unfair competition, intentional interference with business, and trade disparagement, to name only a few. The cause for this action? O'Neill had incorporated into his Air Piratescomic books the world's most famous mouse, his female counterpart, their web-footed friend, and other Disney trademarks. But far from homage to everything Disney, O'Neill and his team of cartoonists were intent on destroying Disney's “corporate seizure of the American narrative.”
The story of O'Neill's legal battle with Disney is the vehicle that Bob Levin uses in his new book The Pirates and the Mouse(2003, Fantagraphics) to examine the hegemonic function of popular culture. Popular culture, Levin reminds us, is always political and therefore always ripe with ideological suggestion. Most of the time, popular narratives reinforce traditional modes of thought: heterosexuality, religiosity, the Protestant work ethic, America and apple pie. But popular culture is also a terrain of ideological struggle; countervailing forces are always working to infiltrate the mainstream in order to undermine its legitimacy. Of course, when attempts to buck the system are blatantly apparent, the system strikes back. You needn't be Lenny Bruce, Robert Mapplethorpe or Ice-T (when he was still a “cop killer” and not playing a cop on TV) to predict the regulatory or legal backlash. Goofy himself could predict the outcome.
Dan O'Neill did not merely challenge Americana. He subjected it to the equivalent of a Friar's roast. He began his career in 1964 as the creator of the Odd Bodkins comic strip while working for the San Francisco Chronicle.Never a conventional strip, it was a product of its time and became more psychedelic in theme, text and artistry as the '60s unfolded. In one strip, the Bodkins asserted, “To see or Nazi. That is the question.” In another, it proclaimed politics “a system designed for the mentally deficient” in that “it keeps them perpetually employed.” Odd Bodkinswas hardly Peanuts. But the strip also clearly violated a condition of his employment: no politics, sex or religion.
Ironically, it was O'Neill's demand that he maintain complete authorship of his work that put him at odds with Disney. After his editors tinkered ever so slightly with the text of his strip to make it more palatable, O'Neill set up his own firing, incorporating Disney characters into his twisted and outlandish syndicated column—that is, he decided to make the most palatable form of American culture less palatable. When the ax fell, O'Neill made it his personal mission to use the Disney characters to communicate everything that was wrong with mainstream America. Reactive as always, he created the Air Piratescomic series and used it as a means to take on the establishment.
In the pages of this underground comic one could find exact renderings of Disney trademarks behaving in a less than snow-white manner: a gun-toting Mickey, a foulmouthed Minnie—there were even references to the cryonically preserved Walt Disney as an “old Popsicle.” In perhaps the most infamous panel, an otherwise happy-go-lucky Mickey laments: “The whole world thinks I'm cute! Why won't anybody fuck me?” Each Disney character was drawn to perfection; only the settings and situations looked different—a point of extreme importance in the inevitable legal battle that followed.
The legal arguments surrounding Dan O'Neill and Air Pirates are as convoluted and confusing as Levin's presentation of them (my primary complaint is with Levin's lengthy meanderings and footnotes; David Foster Wallace he's not). What is significant, though, and what constitutes the strength of both O'Neill's tenacity in pursuing the case and in Levin's account of it as politically and socially meaningful, is that both remind us that the original intent of the copyright to protect the establishment against revolution under the crown is still alive and well today.
Disney's case hinged on the fact that O'Neill's drawings closely resembled the real thing; that, of course, is an important aspect of parody. But Disney argued that such accurate representations might confuse America. It's difficult to take seriously Disney's argument that Air Pirates—an unknown, underground, small-circulation publication—could ever be confused with or compete economically with the real deal no matter how exact the rendering. Perhaps this is why Disney's counsel peppered the complaint with references to Air Pirates as “perverted,” “offensive,” “degrading” and “defamatory” (they forgot “schismatical”), as if parody should somehow strive for wholesomeness. Perhaps this explains why Disney once sued a man for tattooing its characters on his body or why it sued the Academy of Motion Picture Arts and Sciences for pairing Snow White with former amateur video star Rob Lowe during an Academy Awards dance number.
The court found for Disney, fining O'Neill some hundred thousand dollars plus legal fees. According to the judge, O'Neill was entitled not to the “best parody” but only to “what is necessary” for political or social commentary. Lorne Michaels, you have been warned.
But the story does not end there. The parties settled out of court with no admission of guilt so long as O'Neill promised never to draw Mickey again. That agreement says almost everything you need to know about the power of corporations to shape reality. “Why can't I satirize Mickey Mouse, when I can [satirize] the flag, apple pie, presidents, Christ and the Virgin Mary?” O'Neill asked—and then he answered his own question: in America, corporations shape reality and are protected from criticism. Compared to such corporations, mere religions and nation-states are almost nothing. Disney is “so big,” O'Neill concluded, “they don't even know what they're doing. They've sued everything that even looks like a mouse.”
But draw another mouse? “I only got involved out of a vague interest on the First Amendment,” said O'Neill. “There are other people in the country who can draw mice. I won't. I hate mice. I found four of them in my kitchen last week.”
Through a series of seemingly endless legal battles, Disney continues to claim ownership of a copyright on morality. And just when we thought the silencing effect of copyright couldn't get any worse, Fox News announced that it is suing political comedian Al Franken and Penguin Books because his forthcoming book, Lies and the Lying Liars Who Tell Them, is subtitled A Fair and Balanced Look at the Right. Like Disney, Fox News has seemingly insulated itself from social commentary by ensuring that any parody won't too specifically hint at the subject of scrutiny.
In the end, Disney—like a monarchy of old—profits from creating the impression of purity and wholesomeness within the status quo. And it will use the law to convince us all that there's no Dumbo in the living room, even if it needs to trample on the First Amendment to preserve the illusion.
