(This text was first published in John Shelton Lawrence and Bernard Timberg, editors, Fair Use and Free Inquiry: Copyright Law and the New Media, Norwood, N. J.: Ablex, 1980. It has been slightly updated for publication here. Reprinted by permission of the author).
The new media of mass communications has occasionally stimulated visions of an international community that exchanges its cultural creations and enriches its consciousness through the resultant diversity. Marshall McLuhan’s phrase, “the global electronic village,” expresses this optimism, as did Thomas Hutchinson’s prophecy of 1938 regarding the future of television:
Television means the world in your home and in the homes of all the people of the world. It is the greatest means of communication ever developed by the human mind. It should do more to develop friendly neighbors, and to bring understanding and peace on earth than any other single material force in the world today.1
To such minds, the notion of art as universal language has come of age with the technologies for the world-wide distribution of imagery.
The belief that popular, commercial art and entertainment will advance the cause of humankind found an eloquent proponent in Walt Disney, whose moralism and sense of cultural mission are widely known. More than a decade after his death, the corporation he formed seeks to give embodiment to his visions of commercial entertainments that would have a salutary effect on all the peoples of the world. For example, in announcing the Experimental Prototype Community of Tomorrow (EPCOT) to be constructed in Florida, the Disney Corporation’s president Card Walker wrote:
There never has been a greater need for the communication of information about the diverse peoples of our planet, the new systems evolving to meet the need of those people, and the alternatives we face …
EPCOT Center and its two major themes, Future World and the World Showcase, will be devoted to … the advancement of international understanding and the solution of the problems of people everywhere.
Our dedication … will extend as far as the Disney ability to communicate can reach, including films, television, educational materials, and even the licensing of concepts and products.2
Disney’s Annual Report for 1977 provided this view of EPCOT’s potential: “It will be a “communicator to the world”,… “a permanent international people to people exchange”, advancing the cause of world understanding … a much needed symbol of hope and optimism.…3”
The tensions between enlightenment and enjoyment, American national and foreign interest, corporate profit and service to mankind are to be dissolved in this last of the great theme parks conceived by Walt Disney before his death.
Turning from the appealing rhetoric of “sharing,” “communication,” “understanding,” and “peace” to examine actual patterns of exchange in the world’s popular media, one discovers important inequalities among nations. In film and television, where Disney Productions has had great success, United States dominance is immediately evident. Although there is significant global distribution of media products, there is relatively little exchange. Some major countries, for example, import as much as 69 percent of their foreign films from the United States.4 About television, Elihu Katz and George Wedell report in their survey of international programming:
On Monday, July 15, 1975, at 8:30 p.m. the viewers of Bangkok could choose among three American series: “Manhunt,” “The FBI,” and “Get Christie Love!” On a Saturday night in Tehran the viewer had a choice of “A Family Affair” and “Days of Our Lives” on one channel and “The Bold Ones” and “Kojak” on the other. The examples are handpicked, of course, for the choice sometimes include—as in Thailand on Sundays—wrestling (local), a Disney film, or “Hawaii Five-O.”5
Some countries import as much as 100 percent of their programming, resulting in choices like those just mentioned; the United States imports only 1 percent of its commercial television offerings and a mere 2 percent of its public television.6
In the field of children’s comics there are similar patterns of dominance by United States exports, led, of course, by Disney, whose publications are translated into eighteen different languages, including Arabic, Flemish, Serbo-Croatian, and Thai.7 Millions of the Disney comics are distributed monthly, not to mention the additional millions sold by Marvel and DC Comics, but United Stated entrepreneurs import almost nothing from foreign countries for distribution to their own people.8 Communication in “the global village,” then, goes one way: the United States transmits cultural messages but receives very few from those to whom its communications are directed.9
DONALD DUCK AND THE CHILEAN REVOLUTION
The relations of dominance and passivity in world cultural exchange have not escaped the attention of observers in host countries for United States media products. One of the more forceful attempts to analyze the influence and values of imported United States culture and of the Disney universe in particular occurred in Chile during its short-lived socialist government under Salvadore Allende (1970–73). Ariel Dorfman and Armand Mattelart wrote Para Leer al Pato Donald (translated into English as How to Read Donald Duck: Imperialist Ideology in the Disney Comic)10 which was widely read in Chile, Latin America, and eventually in a number of other countries—the United States excluded. Details of its English translation and attempted importation are an un-recounted episode in the evolving tradition of copyright and fair use. It is a story that turns on the presumed unique status of imagery as understood by image-producing corporations and the correlative timidity of publishers about viewing such images within the fair use tradition.
At the time of the socialist revolution in Chile, the communications industries there exhibited a typical Third World configuration. More than 50 percent of its television programming was imported from foreign countries, with a predominance of United States offerings like “Bonanza,” “Mission Impossible,” “FBI,” “Disneyland,” etc.11 Half-hour episodes that would cost from $3,000 to $5,000 in Japan or West Germany could be obtained for sums like $65–$70. Feature length United States films priced at $24,000 to $60,000 in Japan or Germany were available for $350 to $400. As Jeremy Tunstall has explained,
The standard American practice in all media fields is initially to undercut the opposition through price competition; this follows from the enormous number of publications and broadcast outlets in the USA. Since an extra “copy” of news agency service, or the use of a feature film or a television series, has no obvious or “rational” price, there is more than the usual scope for price cutting and variation.12
Clearly such pricing policies will depress native production in market economies, since the cost of a program or film copy can be held below the costs even for lighting a studio or providing film stock. The virtually free distribution of programs and films at “country prices” is thus a good initial investment in an economy that may rise to greater affluence without ever developing its own media production facilities. Furthermore, United States programs are undeniably popular with foreign audiences and help foreign television networks to fill up programming hours once they have made a commitment to use television as a form of national entertainment.
The Chilean comics market also imported American products like Superman, The Lone Ranger, and others, as well as the Disney comics.13
Responding to these circumstances in December 1969, the Popular Unity party formulated a program for mass communications that received the approval of allied political groups:
The means of communication (the radio, the press, publishing, television and the cinema) are fundamental aids to the formation of a new culture and of a new man. They should therefore be imbued with an educative spirit and freed from their commercial character. Measures should be taken to make the media available to the social organizations and to cast off the brooding presence of the monopolies.14
When the Popular Unity party came to power in 1970, it did make an effort to reshape a culture for the Chilean population, though it left commercial television largely intact. The state took over the largest publishing house in Chile, Zig-Zag, and used it to launch Empresa Editorial Quimantú, an operation that eventually published several million inexpensive books for wide distribution.15
It was through Quimantú (meaning literally “Sunshine of Knowledge”) that a counteroffensive against the Disney comics was launched. Rather than forbidding further publication of Disney materials, Quimantú created Cabro Chico (The Little Kid) as an alternative, progressive-revolutionary comic. Two associates at Quimantú, Ariel Dorfman of the Juvenile and Educational Publications Division and Armand Mattelart, head of investigation and Evaluation of the Mass Media Section, collaborated on The Little Kid and also wrote How to Read Donald Duck (1971), a popular and radical exposé of the values and worldview of Walt Disney material.
How to Read Donald Duck deals with several topics ranging from the peculiar sexual and familial values of Disney’s “funny animals” to the political and social values that lie close to the surface in the episodes of Donald, his nephews, and the surpassingly rich but stingy Scrooge McDuck. It analyzes attitudes towards work, ownership, leisure, and the other perpetual themes of conflict in Duckburg. Many of their observations are paralleled by those found in the works of James Agee, Richard Schickel, and other critics of Disney.
But the central weight in the Dorfman-Mattelart critique falls upon the political and economic values of Disney as they relate to peoples of the less developed countries who have fallen into the U.S. orbit of influence—often symbolized by Disney fantasies about the Ducks as global travelers.
Roughly half the Disney comics sampled in their study showed the heroes from Duckburg confronting the peoples of other continents and ethnic groups. Plots in the stories and the imagery used to convey them—images that Quimantú reproduced without authorization from Disney—reveal a population of childlike noble savages on the one hand and political revolutionary thugs on the other. The former are easily tricked out of their wealth by the greedy ducks since they do not understand the value of their assets, and they are perpetually in need of redemption from problems that they cannot solve with their own resources. The political revolutionary thugs terrorize the natives of imaginary countries like Unsteadystan, though they are easily defeated once exposed by the super-intelligent ducks.16 The Disney comics, which to some extent permit the regional production of Disney material, at times engage freely in antirevolutionary political propaganda. An episode appearing after the seizure of power by the junta featured the Allende government in the form of buzzards named Marx and Hegel, who attack helpless kittens as Jiminy Cricket watches. They are eventually chased away by a farmer with a shot-gun. “Ha! Firearms are the only thing those bloody birds are afraid of.” Marx and Hegel (in their Disney-buzzard form) are of course “immune to the voice of conscience”.17
In generalizing about the implications of Disney materials for a country like Chile, Dorfman and Mattelart suggest:
The threat derives not so much from their embodiment of the “American way of life”, as that of the “American dream of life”. It is the manner in which the U.S. dreams and redeems itself, and then imposes the dream upon others for its own salvation.… It forces us Latin Americans to see ourselves as they see us … The Disney cosmos is no mere refuge in the area of occasional entertainment; it is our everyday stuff of repression.18
The socialist critique of Donald Duck found a fairly wide audience in Chile, resulting in twelve separate printings before the military coup that destroyed the Popular Unity government in 1973. Like many other artifacts of the socialist period, the book was burned; the authors were compelled to seek refuge in other countries. A New York Times article reported that “after the coup the president of the neighborhood council ripped down the socialist calendars and slogans that hung on the wall of his two-room wooden shack. In their place he put up some posters of Mickey and Donald.”19 In the wake of socialist criticism, the Disney characters had become antirevolutionary symbols.
The book was, however, destined to survive its burning and banning in Chile, and its exiled authors survived the mass executions carried out by the military junta. A Latin American edition had been published in Argentina in 1972. Feltrinelli in Italy published its translation Come Leggere Paperino in the same year. By 1975, By 1975, Para Ler o Pato Donald had appeared in Portugal, followed in rapid succession by the French edition, Donald I’imposteur (1976); the Swedish, Konsten All Lasa Kalla Anka (1977); the German, Walt Disney’s Dritte Welt (1977); the Danish, Anders And i den tredje verden (1978); and the Dutch, Hoe Lees ik Donald Duck (1978), with other editions in Greek, Finnish, and Japanese. English language edition sales are now in the region of over 20,000, with total world sales around 500,000.20 In their modest way, these figures rival the global reach of Disney’s distribution.
One might have expected that the book would become widely available in the U.S., but here intervened the consideration of copyright. The art historian David Kunzle, who has written a major social history of the comic strip and who has also studied the art of revolutionary Chile, prepared a translation and introduction for How to Read Donald Duck while attempting negotiations with American publishers. Random House, which had an option through Feltrinelli, considered publication, as did Beacon Press, which had fearlessly published the Gravel edition of the Pentagon Papers. Both were eventually deterred by their fear of litigation from Disney, according to Kunzle.21 Disney comic book frames provided visual documentation for the book’s argument about prominent themes and stereotypes. Disney’s reputation suggested that it would never give permission for such a use and that it would cause expensive litigation if these frames were published without permission. Eventually, International General of New York, which specializes in Marxist publications, agreed to publish the book and had it printed in England: 3,950 copies of How to Read Donald Duck left England in May 1975 and arrived at the New York docks in June. At that time, Donald Duck in his corporate form began to fight back, confronting the thieving revolutionary thugs of an “Unsteadystan” that no longer existed.
THE DETENTION AND RELEASE OF HOW TO READ DONALD DUCK
The Imports Compliance Branch of the Customs department, a subdivision of the Treasury Department, has the authority to review imported material for its “piratical” character. When How to Read Donald Duck arrived, Imports Compliance made a preliminary judgment that the book might infringe upon Disney copyrights. The Chief of Imports Compliance, Eleanor M. Suske, informed International General in a letter of July 10, 1975, that the book was being seized and held in custody pending a final determination. Walt Disney Productions was similarly informed in a letter of August 12. Both parties were invited to submit briefs, as the Treasury Department has authority to consider evidence and arguments in such cases.
International General sought legal assistance from the Center for Constitutional Rights (CCR), which argued for the release of the book both on fair use and First Amendment grounds. The letters were vigorous and detailed.22
In its response to the notification, Walt Disney Productions was represented by its Eastern counsel, Franklin Waldheim, who declared that the books were piratical infringements of Disney’s character copyrights.23 He anticipated the fair use defense by suggesting that the use of the illustrations was in no way necessary to document what the authors were attempting to prove, since the mere description of the plots and quotation of literary text would have sufficed—a use which Disney did not choose to contest. In interpreting the purposes behind the book’s use of the images, he saw the attempt to embellish a book at the expense of Disney. He also suggested that the use of a Disney-like image of Scrooge McDuck on the cover was an effort to deceive unsuspecting parents into believing that they were buying one of the Disney comics—thus depriving Disney of income that rightfully belonged to it.24
A central contention in the Waldheim letters is that imagery, unlike the words in the comic text, is not susceptible to fair use; verbal equivalents are in all cases sufficient—except where the nature of the art work itself is discussed. It was this point that the attorneys for International General and the authors confronted in their briefs and rebuttals.
The Center for Constitutional Rights is a nonprofit legal assistance group in New York City that provides counsel in issues related to the Constitution and Bill of Rights. Lawyers for the Center, Peter Weiss, Rhonda Copelon, and William H. Schaap, defended How to Read Donald Duck against the accusation of piracy by an appeal to both the fair use concept and the First Amendment. In their letter of August 8, 1975, to the Imports Compliance Branch of Customs, they argued that in relation to recognized fair use questions,25 Donald Duck could pass traditional tests. They cited Judge Lasker in Marvin Worth Products v. Superior Films Corp. (S.D.N.Y. 1970, 319 Fed. Supp. 1269; 168 USPO 693, 697):
The cases and commentaries attempting to define the quicksilver concept of “fair use”, although varying and overlapping in their definitions, appear to agree that there are at least four tests appropriate to determine whether the doctrine applies: (1) Was there a substantial taking qualitatively or quantitatively? (2) If there was such a taking, did the taking materially reduce the demand for the original copyrighted property? (3) … Does the distribution of the material serve the public interest in the free dissemination of information, and (4) Does the preparation of the material require the use of prior materials dealing with the same subject matter?
Taking Judge Lasker’s decision as the point of departure, the center’s lawyers answered his questions in the following way;
Having formulated the fair use defense, the CCR memorandum turned to the question of the First Amendment and argued as follows:
… we would contend that preferred position of the First Amendment in the spectrum of constitutionally guaranteed rights must be recognized in the field of copyrights as well. The book at issue, while a serious work of scholarship, is also a frankly political statement which is, or should be, of interest to a large number of readers. In view of this, the greatest reticence should characterize its evaluation by an agency of the government, lest property rights be given preference over rights of free speech and political expression. In other words, only the grossest and most unambiguous case of piracy–such as clearly is not present here–could possibly justify an assault on free speech in the guise of copyright protection. On the other hand, given a delicately balanced situation from a pure copyright point of view, First Amendment considerations should always tip the balance in favor of publication (or, in this case, importation).
The CCR lawyers concluded their First Amendment argument with a citation from Judge Wyatt’s decision in the Time v. Bernard Geis case, where he appealed to the public interest in being permitted to share important information about the assassination of President Kennedy.
An author-editor letter, written immediately upon receipt of the Customs Compliance notification and included with the CCR statement, addresses itself primarily to the question of whether the contested images are necessary to their critical analysis. The text of that letter reads as follows:
6 Reasons Why No Cartoon Matter, No Book
Also, the depiction of “villains” throughout as big, black, ugly and stupid; all so cliché-ridden they are literally undescribable without using the cartoon itself.
Similarly, the sexuality and coyness in the visual matter—in opposition to asexuality and prudery in the language.
In brief, the written text is the thesis, and the cartoon reproductions are the evidence and proof.
Just as the essence of Disney is both literary and graphic, the essence of the criticism of Disney is both literary and graphic.
Furthermore, many of the cartoons were never published in the USA, and thus a written text without cartoon reproductions would further decrease the credibility of the analysis, because the USA audience is not aware of this aspect of Disney, particularly Disney’s very political character, which is the very essence of the book’s thesis.
Again to repeat, if the essence of Disney can be captured solely by language, why did they take the trouble to make graphic matter?
Answer: In reality the verbal and visual matter are inseparable (also insufferable).26
As letters from the conflicting parties were received at the Customs Compliance office, they were duplicated and transmitted for response to both Disney Productions and to CCR. The parties reiterated their positions in a variety of ways and engaged in a more detailed debate regarding the necessity to reproduce Disney images. Franklin Waldheim, Disney’s attorney, found in Point 6 of the author-editor memorandum, a confirmation of the piratical intent upon which Disney was resting much of its case.27 It was held to be a concession to the accusation that the taking was designed to enhance the entertainment value of the book. But this taking in its larger context served the ultimate purpose of dissuading anyone from ever buying Disney commodities in the future. The Disney argument thus contained at least three distinct strands:
Responding to these contentions about the alleged cloaking of its uses behind the mantle of fair use—as opposed to honestly flying the black flag of piracy—the CCR responded to the Customs Department as follows:
As for Disney’s statement that inserting copies of the comic book frames is not necessary since the book is not a criticism of artistic style, we submit that the Disney comics primarily convey their message through pictures, not just dialogue or situation. For example, on p. 58 of How to Read Donald Duck, the authors discuss the situation of a comic in which Donald becomes involved with revolutionaries. The reproduction of selected frames is necessary in order to demonstrate both Disney’s negative portrayal of the revolutionary leader through his pictured actions and to show the strong resemblance he bears to Fidel Castro. These subtle statements cannot be described in mere words, but must be shown in order to discuss their impact intelligently. As in Time v. Geis, 293 F. Supp. 130 (S.D.N.Y. 1968) the excerpts from the copyrighted work are necessary to make the author’s theory comprehensible.28
Thus it is clear that both of the disputing parties held the visual matter of Disney to have a unique status. The authors contended that imagery conveys information that becomes available for discussion only when it is reproduced. The Disney corporation argued, on the other hand, that except in the context of art criticism, copyrighted visual contents are wholly susceptible to evocation through verbal equivalents; images, unlike words, thus have a legal status that prevents their reproduction for the mere purpose of message analysis.
It was probably the failure to produce a specific law or precedent on this point that pushed the Customs Department toward a decision favoring the importation of How to Read Donald Duck. On June 9, 1976, Eleanor M. Suske rendered an opinion “that the books do not constitute piratical copies of any Walt Disney copyrights recorded with Customs, within the meaning of Section 106 of the copyright law.”29 Disney challenged the decision by seeking further representation from the firm of Donavan, Leisure, Newton and Irvine of New York. Upon their restatement of the Disney contentions of piratical infringement in a letter of October 6, 1976,30 the Treasury Department (the parent administrative agency for Customs) articulated the reasons for its decision more fully through a letter from Leonard Lehman, Assistant Commissioner for Regulations and Rulings. “No specific copyright recorded with Customs has been cited as the basis for the exclusive action sought by Walt Disney Productions.”31 There had, in fact, been doubt about whether the Latin American comic book images had ever been copyrighted in the countries where they had been published—a point made by CCR and never addressed by Disney in its representations. But more important, from the standpoint of the fair use controversy, was the Treasury Department’s acceptance of both the fair use and First Amendment arguments:
The spotty use of one, two, or three cartoon “frames” throughout the work in question, does not appear to be a substantial appropriation of a material part of any one copyrighted work so as to come within the infringement test of Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946), cert. denied, 330 U.S. 851. Furthermore, the total of 68 frames does not constitute a substantial portion of the 112-page book. Finally, we do not believe the questioned item, priced at $3.25, and consisting overwhelmingly of ponderous text, could be confused for a Disney.… Most of the issues are related to the sociopolitical “message” of the work in either a specific or general context. We believe the following quotation is very apt for this case:
The spirit of the First Amendment applies to the copyright laws, at least to the extent that the courts should not tolerate any attempted interference with the public’s right to be informed regarding matters of general interest when anyone seeks to use the copyright statute which was designed to protect interests of a quite different nature. (Rosemont Enterprise, Inc. v. Random House, Inc. 366 F2d 303, 35 C.O. Bull. 1965–66, p. 683)
This final ruling, of course, represented substantial concurrence with the arguments advanced by CCR. Walt Disney Productions did not choose to protest the matter any further at that time, though it was clear from their final memorandum issued by Donavan, et al. that they did not regard the Treasury Department as even having the jurisdiction to render a decision of fair use.
But in spite of sympathy for the arguments of CCR and International General, there was a serious snag for them in the final determination of the Customs Department. In her letter of June 9, 1976, Ms. Suske indicated that the entire shipment of 3,950 copies could not be accepted for importation because of the manufacturing clause of the copyright regulations. Although 1,500 copies could be admitted,
The balance of 2,450 booklets in this shipment remain prohibited importation under Title 17, United States Code, Section 16, and are subject to seizure and forfeiture, however you may petition for remission of forfeiture and request approval to export this merchandise under Customs supervision.32
Somewhat ironically, the manufacturing and importation clause of the copyright law is a vestige of a period in history when American book publishers, newspapers, and magazines, freely pirated the works of foreign authors—to the severe disadvantage of both English and American authors. The final price exacted by the pirate industries in the struggle over international copyright that persisted from 1836 to 1891 was a provision in the copyright law that would prevent more than minimal importation of books manufactured in foreign lands.33 Thus, the claims of an earlier generation of pirates, combined with the authors’ inability to find a wholly American publisher, prevented the widespread circulation of their critique in the land that created and sustained the Disney perception of the world.
CONCLUSIONS
The story of How to Read Donald Duck is in important respects unique in the history of visual scholarship and publication. To my knowledge, it is the only case in which a substantial number of images belonging to a major media corporation have been exactly reproduced for purpose of political argumentation—such use being subsequently vindicated by a public decision-making agency. True, a considerable amount of reproduction has occurred surreptitiously, without the asking of permission or resulting challenge by copyright holders. The Donald Duck case squarely confronted the philosophical question regarding the image’s status as a prerequisite to informed and precise analysis and proved to be persuasive, even though Dorfman and Mattelart’s Marxist point of view about Disney’s politics would hardly be considered plausible by the average United States citizen.
It would be a mistake, however, to exaggerate the significance of the Donald Duck affair as legal precedent. Granting that the Treasury Department had jurisdiction to make a determination of fair use—a point that Disney had contested through its counsel34—the case can carry little weight for the American legal system. As an affirmation of the rights of critical inquiry, it has a necessarily ad hoc rather than generalized implication for future fair use decisions.
A greater value of the Donald Duck case lies in its illumination of the residual powers and uses of copyright—as opposed to its normal justification emphasizing incentive and income for creators. Here we can see censorship in the form of prior restraint with its usual attendant evils. The absence of a domestic edition of How to Read Donald Duck and its minimal importation—a mere 1,500 renders it virtually a collector’s item—deprives the American audience of a commentary upon the Disney imagery and stories and thereby prevents them from passing their own judgment upon its message. Furthermore, this restraint is exercised in an arbitrary way; the book has been published in twelve other major languages, appearing in countries where Disney maintains branch offices.35 America alone is chosen as the territory from which the book is to be excluded through administrative or legal action.
The visions of world community promoted by the Disney Corporation could come closer to realization if we could hear more of the world’s people as they assess our cultural impact. To the extent that copyright law restricts such a hearing, its functions and privileges need reassessment.36