“Disney’s use of Evel Knievel’s likeness contains significant transformative elements.”
— Judge James Mahan, U.S. District Court
“We’re obviously disappointed. We are considering our options.”
— Kelly Knievel, son of Evil Knievel
The Walt Disney company has never had any shortage of successful movies — particularly in the realm of animation. But several major purchases over the last few decades have added massive franchises and film collections to the Disney library. In animation, the largest of those was the $7.4 billion purchase of Pixar in 2006.
The Pixar library was replete with successful films — both commercially and at the box office. And Disney made sure to maximize that purchase with two more sequels in the “Toy Story” universe, as well as this year’s “Buzz Lightyear” spinoff. In total, the “Toy Story” franchise has brought $22 billion in worldwide revenue to Disney and Pixar.
To make sure that the films are fun for parents as well as their kids, Disney and Pixar continually make references to pop culture and famous people — often having those famous people appear in cameo roles. “Toy Story 4,” released in 2019, included Mel Brooks as Melephant Brooks, Carol Burnett as Chairol Burnett, Betty White as Bitey White, and Carl Reiner as Carl Reineroceros.
“Toy Story 4” also brought in a new character voiced by Keanu Reeves — Duke Caboom. The Pixar Wiki describes him as a “boisterous daredevil with a sad side, disappointed that he could not live up to all the expectations his original owner had for him.” He’s a “plastic toy in a daredevil’s jumpsuit with red accents. He has a white, red accented helmet with a red tinted, transparent visor, and he also wears a cape. He rides a matching motorcycle with Canadian flag symbology [sic] stamped in several places.”
The character will be almost instantly familiar to any kid of the 70s and 80s who watched stunt after stunt performed by a motorcycle riding, cape wearing, patriotic daredevil with national symbols on his coat, and a white helmet on his head. Whether he was jumping cars or the Grand Canyon, there is only one person who immediately comes to mind, and that’s the famous Evil Knievel. It’s nearly impossible to watch “Toy Story 4” and not come to the conclusion that Duke Caboom is the Canadian Knievel.
Among the people who came to that conclusion were Evil Knievel’s sons, Kelly and Robbie — the latter of whom was also a motorcycle riding stunt performer. The daredevil himself died in 2007, but the sons are part of the family company, K&K Promotions. Convinced that Kaboom was the personification of their father, and that Disney had profited off of his likeness without their permission, they brought suit against Disney after the release of “Toy Story 4.”
If we’ve learned one thing about Disney in the past 50 years, it’s that they have a lot of very good lawyers, and they are not shy about using them. “Toy Story 4” made almost $1.1 billion at the worldwide box office, so Disney had plenty of dollars available to defend the lawsuit.
The original case, heard in Las Vegas, was dismissed by a federal trial court judge in September of last year. He found that while Caboom was “reminiscent” of Knievel, there were plenty of differences between the two, and that those differences were enough to be “transformative.” In other words, Disney was free to make a character that made you think about Knievel, but they weren’t free to use Knievel’s name, likeness, or anything that was unique to him. The Mouse House can produce a somewhat generic motorcycle riding daredevil without paying Knievel, but they can’t, for example, digitally recreate Grand Moff Tarkin in a “Star Wars” movie without permission from the family of Peter Cushing.
This week, the dismissal of the case went before a federal appeals court. The judges on the appellate panel will take several weeks to issue a written decision, but they seemed inclined to go along with the trial judge’s dismissal of the case. One of the appellate judges, Daniel Bress, asked K&K’s attorney, “Is your argument essentially that any time somebody in an expressive work has a motorcycle that jumps over things, and the person is wearing some kind of costume, that that is an infringement on your client’s intellectual property?”
The trial judge’s original dismissal was “without prejudice,” meaning that Knievel’s family could refile the lawsuit with modified claims or after an attempt to address the issues that led to the dismissal. But the statements by the appellate judges seem to make that highly unlikely. Still, in a digital era where we can de-age Luke Skywalker or Nick Fury, bring deceased actors back to life, or make a still photo of Abraham Lincoln appear to sing a modern pop song, lawsuits such as this one are setting important standards.
Now, if Disney wants a cartoon version of a juvenile court judge in their next animated movie, I’ll be happy to answer the phone.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas, where he has served as magistrate, court administrator, and now judge, since 2003. He has written a weekly column on law and history for The Gazette since 2005.