# Owning the Intangible/Free Speech and Copyright

Free Speech vs. Copyright: Parody Rights in the Air Pirates and Beyond
by Martin Estrada
Ever since Mickey Mouse became famous in 1928, copyright and trademark rights have protected the cartoon from use by anyone else. Yet, in this modern era, these rules have been broken by a group of renegade cartoonists who call themselves Air Pirates:
    Their notoriety rested on the two issues of the Air Pirates underground comic that caused the entire group (with the exception of Flenniken) to be sued by Walt Disney Productions for copyright infringement. What prompted the suit was the lead stories in each issue, written and drawn by Dan O'Neill, that depicted Mickey and Minnie Mouse having sex, getting high and smuggling drugs. (Ringgenberg, 1998)

## Introduction

For years children have admired Mickey Mouse and all the other characters in Disney movies. These films depicted good morals that all of us could learn from. For example, from Beauty and the Beast (Hahn, 1991), consider the lesson that it does not count what is on the outside, but what is inside your soul.
Mickey Mouse debuted in “Steamboat Willie” at the Colony Theatre in New York City on November 18, 1928. Ever since that day, Mickey has starred in over 120 cartoons. His depiction was not so amazing when it first appeared because the original drawings were simple circles for his head, body, and ears. Over the course of time, Mickey was redrawn so that his body is now more pear-shaped and his pupils look more realistic. As well, Mickey has had an upgrade to his ears so that they too, look more real to the audience. (Disney, 2010)
For many decades, patents, copyrights, and trademarks have protected ideas. It seems, however, as if intellectual property has protected creative concepts from cartoons to mousetraps, but that such concepts start to belong to the whole world. In the case of Walt Disney Productions v. Air Pirates, we can clearly see that the law did not completely protect Disney copyrights, mostly because the first amendment protects the parody of Mickey Mouse that O'Neil and his colleagues devised. Of course, Disney did not like how the Air Pirates were making fun of its characters in “I am Mickey Mouse and I am the American Dream”(Levin, 2003). In fact, this case helps us understand more clearly the limitations of free expression in cartoons.
The Air Pirates case is a classic example of how the first amendment should be used to protect freedom of expression. Even though copyright law protected Disney, the parody overrides that law to some extent, because Disney attempted to limit speech, so that the point becomes even more clear. This was a curious case, but it does have instructive similarities to other cases in the past.

## Background
### First Amendment

In the Bill of Rights section of the United State Constitution, the first amendment clearly states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances”( ). Ever since this provision came into effect, multiple lawsuits have followed.
In the case Walt Disney Corporation vs. The Air Pirates, the first amendment was meant to be used by the Air Pirates to protect their freedom of expression. Indeed, cartoonists often rely on the first amendment to protect them when they are parodying a play or movie.

### Copyright

When an idea is created, people often do not think much what they are going to do with it later, but when corporation achieve a fresh new creation, they immediately copyright or patent it and trademark it so that other people cannot steal their idea. Some people say corporations are copyrighting to such an extent that the practice is becoming ridiculous, even absurd: they look like little babies fighting over their toys.
Government involvement in these kinds of issues started back in the 15th and 16th centuries, when the church and the government tried to regulate printing. The church and government forbade anyone to speak badly of them in a book. If these authorities found out who had gone against their will, they would then immediately punish the offenders harshly and burn all the books they could get their hands on. Such books would then be forbidden, and anyone caught reading such a work would also be punished. Such these earlier times, the context of copyright has progressively changed from exclusive rights granted to the author or creator of an original work to a point now when it seems nearly anything, from sampling music to DNA strands to comic strips, can be copyrighted. Authors in the past were creative on how to approach their mains ideas that would insult the church and the government and not get them caught

## Air Pirates

The Air Pirates have revolutionized the context of a whole generation and helped to redefine the precise extent of new creative limits. They have created a new boundary within in other comic artist or creative individuals can make even better parodies.
Mickey Mouse has declared a copyright war to everyone that tries to use Mickey Mouse for his or her own benefit. As a result, this case was started in 1970. It is known as Walt Disney Productions v. The Air Pirates and Disney was suing the Air Pirates, because Disney claims that the Air Pirates had copyrighted infringement to Disney's characters (Levin 2004). The case became very heated up ones each side were through to each other evidence of why they were right.
Disney claim that what the Air Pirates where doing unconstitutional, because they own Disney's characters and that they should ask permission, before using characters that do not belong to the Air Pirates. Disney's attorney said that the Air Pirates did not use fair use to take a little sample of Disney's characters, but that the Air Pirates took to much of the fair use to take Disney's characters.
The Air Pirates claim that their work would not replace Disney and that they properly use the Fair Use Act. The Air Pirates were already accused of 38 infringement and their settlement was becoming bigger and bigger every time. As the year went by, the laws were becoming much better, such as the Copyright Act of 1976. This is a very unique law in that it the first time that Congress passes something like this. This law had specific factors for courts to consider in determining fair uses. The first one is that the nature and purpose of the infringing work. The second is that the nature of the copyrighted work. The third is that the amount and substantially of the copies portion in related to the whole. Lastly, it state that the effect of the infringing work upon the potential market for, or value of, the copyrighted work.
In 1978, the courts use the Copyright Act of 1976 to determine if the Air Pirates violated their use of fair use on Disney's characters. Under stick measurement, the courts decided came to an agreement that the Air Pirates did not use the Fair Use Act well and that they over use the power of borrowing Disney's characters. The Air Pirates rejected this claim and appeal for another case, but in 1979, the courts were tired of hearing the same old evidence for the Air Pirates that they stop hearing the Air Pirates appeals. At the end of the 1980, the problem ended with the Air Pirates agreeing by the original 1973 injunction to not draw Disney's characters for public display anymore.

## Old Cases

History cannot be altering in any physical way, but we can sure interpret what it said and alter the future for the best of society. As these old cases from the past show more knowledge on how to interpret what the founder father of the United States wrote on the Constitution.
In 1954, Warner Brothers Pictures v. Columbia Broadcasting System, where in a problem where Warner Brother Pictures owned the right to the Maltese Falcon and CBS was using one of the characters and Warner Brother Pictures sue CBS for those characters. The characters that CBS was using were Sam Spade, but Dashrell Hammett had sold it to CBS for a radio show. Warner Brother Pictures did own the right to Maltese Falcon, but it only featured Spade and that where Warner claim ownership of the gumshoe. In an obscure decision on 1954, the U.S. Court of appeals for the ninth Circuit cast doubt on the copyright ability of fictional characters divorced from stories.
In a few years later 1956, Benry v. Loew's, was a case dealing with fair use. The ninth Circuit case had declared that copying a “substantial part” of a prior work, even in parody, would be actionable. This case was overrule by the Air Pirates case in that now we can use some of the copying of a “substantial part” of a prior work is good. This case overrule makes it ok to take “substantial part” of someone work and claim it as our own.
In the most recent years 1994, Campbell v. Acuff-Rose Music, was a sampling case dealing with fair use. The problem started when 2 Live Crew released a parody of the song “Oh, Pretty Woman” in 1989. The owner of that song, Acuff Rose, sued for copyright infringement. When the courts were doing the step-by-steps analysis of the four factors of fair use set by the Copyright Act of 1976. The courts decide that 2 Live Crew had violated the fair use and that they did not incorporate many of their ideas into the song. This case also brought up the question that how come this parody was not protect while other were? This was unfair for 2 Live Crew since there might be some bias motivates behind the courts decision.

## Article

In this newspaper article ”Free Speech”, we can see the frustration that Paulo Coelho is having with the illegal downloading of books. Before the author was a writer, he loved the Internet at first, but now that he is a writer, he seems to be battling people who are pirating his book and downloading them illegally. The source was limited to only arguing against downloading books illegally.
In this opinion piece, we can clearly see that the author in “When Copyright Is Wrong” has not favored copyright license law for many years, even when the author of a particular piece is dead. According to the author this law only slow down the process of moving forward to new innovations. The author is a copyright lawyer and she discusses how expanding copyright laws must stop piracy of film, music, or anything else. The discussion in the source is limited to copyright and intellectual property laws.
In this newspaper article “Copyright Neglected”, we see that the new era of technology is causing a lot of game coding piracy problems. All the big companies need to have gatekeepers, so that hackers cannot gain access to their codes and replicate them to their own software. The discussion was limited to gaming and codes stealing.
In this article “Disney’s War Against the Counterculture”, we see the dynamic of how the copyright rights laws do not always protect everyone’s rights. Dan O’Neil a member of an American cartoonist who decides to draw comics of Mickey Mouse depicting him as a bad character. The Disney Corporation was not happy with this infringement and decides to sue. In the end the Supreme Court refused to hear the Air Pirates appeal, and they won by forfeit. The source is limited to a discussion of copyright, first amendment and intellectual property.
According to this newspaper article “Obama Administration Launches Offensive Against IP Pirates”, the Obama Administration will try to reduce the act of digital piracy. People still do this illegal activity. They should find a more strategic way to effectively stop the piracy from happening. The source is limited to digital piracy. The author of the title suggests that the Ad more italic.
In this book The Pirates and the Mouse, we clearly see in depth the case of Walt Disney Corporation vs. Air Pirates. The Air Pirates were underground cartoonists who made fun of Disney's character. When the Disney Corporation found out about this, they sued, but they lost. We see how the first amendment places a key role in this case.