Walt Disney Productions v. Mature Pictures Corp., 75 Civ. 394.

• Decision Date: 14 February 1975
• Docket Number: No. 75 Civ. 394.,75 Civ. 394.
• Citation: 389 F. Supp. 1397
• Parties: WALT DISNEY PRODUCTIONS and Walt Disney Music Company, Plaintiffs, v. MATURE PICTURES CORP. et al., Defendants.
• Court: U.S. District Court — Southern District of New York

389 F. Supp. 1397

WALT DISNEY PRODUCTIONS and Walt Disney Music Company, Plaintiffs, v. MATURE PICTURES CORP. et al., Defendants.

No. 75 Civ. 394.

United States District Court, S. D. New York.

February 14, 1975.

Donovan, Leisure, Newton & Irvine, New York City, for plaintiffs by Walter L. Stratton, Harold Barry Vasios, New York City, of counsel.

Kassner & Detsky, New York City, for defendants Mature Pictures Corp. and Robert Sumner by Seymour S. Detsky, New York City, of counsel.

MEMORANDUM

KEVIN THOMAS DUFFY, District Judge.

This is an action for a preliminary injunction brought by the plaintiffs as owners of the copyright of Mickey Mouse March and seeking to prevent the use of that music by the defendants in a movie entitled "The Life and Times of the Happy Hooker" and/or "The Life and Times of Xaviera".

The "Mickey Mouse March" was an original song written by Jimmie Dodd and used generally in connection with the Mickey Mouse Club television series. Having at the request of the parties viewed major segments of the taped Mickey Mouse Club, it is clear that these programs were made for an audience comprised mainly of youngsters. The Mickey Mouse March apparently was the theme song for this television series.

In the movie produced and distributed by the defendants, there is a portion where three male actors sing some of the words of the Mickey Mouse March and for a period thereafter of approximately four to five minutes, the Mickey Mouse March is played as background music while the female protagonist of the film appears to simultaneously gratify the sexual drive of the three other actors while the group of them is located on or near a billiards table. This gratification is apparently done orally, anally and vaginally. Supposedly, according to the story line of the film, the three male actors were teenagers "whose father had arranged for her (the female protagonist) to be present as a birthday surprise to them."

At the time the cast on the screen is quite bare except that the male actors are wearing "Mousketeer" hats similar to those worn by the performers in the television productions of the "Mickey Mouse Club".

There can be no doubt that the music played as background in the defendants' film is the copyrighted "Mickey Mouse March". There is no doubt that the plaintiffs, as owners of the copyright, did not give defendants the right to use the song. There is no doubt that the defendants have used the copyrighted material for commercial gain.

The only real question presented is whether the use by defendants of the copyrighted material constitutes "fair use" as a parody.

Defendants claim the music is used to "highlight and emphasize the transition of such teenagers from childhood to manhood . . . in a highly comical setting", and as such is merely a "humorous take-off" on the music.

The exception of "fair use" as described in Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 307 (2d Cir. 1966) lies

". . . in the constitutional purpose in granting copyright protection in the first instance, to wit, `To promote the Progress of Science and the Useful Arts.' U.S.Const. art. 1, § 8. See Mathews Conveyor Co. v.

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