Plethora of Phoney Firsts in Creator’s Rights
Whether out of sturdy purpose or sheer perversity, Bud Fisher, as we saw when celebrating the centennial of the daily newspaper comic strip (here below, November 2007), advanced the cause of creator’s rights at a time when the concept was stunningly unheard of. The work of cartoonists was not seen then as “art” in any sense that made them creators; and the notion of a newspaper artist having any rights at all was scarcely on a firm footing. Fisher copyrighted Mutt and Jeff in 1907, virtually at the birth of the strip, and, later, registered the name as a trademark. And these two acts (the first, a furtive coup behind his editor’s back) established his rights to a property that was eventually worth thousands, even millions, to the owner.
Comic book cartoonists have so recently acquired the chutzpah to demand ownership of their work that we usually think that the cartoonist’s owning his own work is an uncommon circumstance. And it is. Or has been. Comic book publishers and feature syndicates have long presumed to own the work of those who produce for them. But that was not always the case. And, indeed, creator ownership is not unprecedented in the annals of cartooning, and, in fact, the precedents oft referred to (Gene Ahern, Milton Caniff, Roy Crane) are not actually precedential.
Histories of comics usually cite Caniff as having plowed a new furrow when he gave up Terry and the Pirates in 1946 in order to start a new strip, Steve Canyon, that he, not the syndicate, would own. Certainly there was enough ballyhoo about Caniff’s move to attract attention—both at the time and in the history books. But he wasn’t the pacesetter. Gene Ahern had done the same in 1936 when he defected from the NEA syndicate and his panel feature Our Boarding House to start Room and Board, a virtual carbon copy of his NEA cartoon, at King Features. And Roy Crane jumped the NEA ship, too—in 1943, leaving Wash Tubbs and Captain Easy and starting Buz Sawyer at King. Both Ahern and Crane secured the rights to their new strips.
All three of these cartoonists displayed no little daring in their desertions: they were leaving highly regarded features in order to gain ownership of their work, and they could have no way of knowing whether their new creations would be as popular as their first-born. And in all three instances, although the new strips were highly polished examples of the cartooning craft, it seems to me (and other observers of similarly dubious astuteness) that all three lacked the spark that had ignited and energized their predecessors.
The case of Bud Fisher demonstrates that Caniff wasn’t the first to own his strip. Nor was Crane nor Ahern. Fisher, however, was not the first cartoonist to see the value in copyrighting his work. Nor were his legal battles 1915-1921 against the Hearst Works the first on behalf of a creator’s right to his intellectual property.
The first legal battle over a cartoonist’s right to his work was probably in 1906 when Richard Outcault sued the New York Herald. Outcault had originated Buster Brown in May 1902 at the Herald, then left at the end of 1905 for the greener pastures William Randolph Hearst was cultivating at the New York Journal. (And this wasn’t the first time Hearst had lured Outcault to his side: he’d done it when Outcault was producing the Yellow Kid at the New York World, too, ten years earlier.) The Herald continued to publish Buster Brown after Outcault’s departure, hiring another artist to do it. Outcault’s suit argued that he had an exclusive right to his creation and that the Herald ought to stop publishing Buster Brown. The Herald counter-sued, maintaining that Buster Brown was its property and that it had a right to continue its publication.
The two cases, oddly, were tried in the same court by the same judge. The judge found in favor of the Herald in the second case, holding that the strip had become an exclusive trademark of the newspaper through its continued copyrighted publication over the previous three-and-a-half years. As for Outcault’s contention, the judge denied it. Outcault, who had not copyrighted the strip in his name, attempted to assert some “common law title to the individual figures displayed, which he can maintain to the exclusion of others” —a notion the judge found no authority to support, saying it was therefore “entirely novel and does not commend itself as sound.”
Mark D. Winchester covers all this litigious ground in an article in the short-lived Inks: Cartoon and Comic Art Studies in May 1995 (Volume 2, Number 2). He summarizes the effect of the judge’s decision: “In the view of the court, the title (Buster Brown) and the individual published drawings were subject to copyright, but the characters in general (including elements of likeness, costume, and demeanor) were not tangible enough to merit copyright nor trademark. Outcault was free to use the character of Buster Brown but not the name or the title.” By the same token, the Herald was free to hire another artist to produce Buster Brown and to continue to publish the feature under that name.
If this verdict sounds familiar, it’s because so many histories of cartooning have referred to it as a landmark decision. But they usually say the decision was arrived at in regard to Rudolph Dirks’ Katzenjammer Kids. Or Outcault’s earlier creation, the Yellow Kid. I’ve seen both the Dirks’ case and the Yellow Kid case called “landmark decisions” that establish exactly the same thing—namely, that the newspaper has a right to the title of the strip but the creator “owns” the characters and can therefore produce features about them elsewhere with impunity. Clearly, neither the Dirks’ case nor the Yellow Kid case were “landmark decisions”: a landmark decision is a watershed event, and if one had been a landmark decision, the other would not be.
In the Dirks’ case, according to popular mythology, the cartoonist went on vacation from the Hearst paper and when he returned, he found that Hearst had hired someone else to continue The Katzenjammer Kids and wouldn’t hire Dirks back. So Dirks went to the rival New York World and started drawing Hans and Fritz again. Hearst filed an objection, and the subsequent legal action produced a “landmark decision” that gave Dirks the right to draw the characters but not to use the title, which was deemed the property of Hearst’s Journal.
What actually happened, according to Winchester’s well-documented article, is that Hearst brought a suit to restrain Dirks from working for the competition on the grounds that the Journal had a contract with Dirks that included an exclusivity clause. The judge threw the case out, though, because Hearst evidently expected the contract to enable him to keep Dirks off the payroll while also preventing his working anywhere else at his trade. “Unenforceable to injunction” was the verdict. Nothing about a creator’s right to his characters or a newspaper’s right to the title.
The Yellow Kid case is another figment, Winchester believes. If there had been a Yellow Kid case establishing the precedent that was actually established in the Buster Brown case, then the Buster Brown case would never have made it to a courtroom. What’s more, Winchester, who searched court records for the period, could find no record of a Yellow Kid case.
Probably, the “Yellow Kid case” was invented by historians who, familiar with present-day litigiousness, assumed that everyone in 1896 was similarly eager to dash into court at the slightest provocation and that, therefore, there must have been a Yellow Kid case because two newspapers, Hearst’s New York Journal, and Joseph Pulitzer’s New York World, both published a cartoon feature starring the same jug-eared, bald-headed kid in a yellow nightshirt. Surely, both could not legally publish the same feature. Surely, there must’ve been a suit.
Nope. Not so. Or, if so, there’s no record of it. Perhaps the case was settled out of court, but if it had been, then Outcault, who was involved in both the Yellow Kid and Buster Brown cases, would probably have made some reference in the Buster Brown effort to a previous legal maneuver. But there is no reference to a Yellow Kid decision, in or out of court, in the records of the Buster Brown case.
On the face of it, the Buster Brown case seems to have affirmed in a court of law what was already accepted in common practice. And it was probably a common practice as far back as the time that the Journal and the World fought circulation battles with the Yellow Kid in the trenches—or, less metaphorically, posters of the Yellow Kid on the delivery wagons taking bundles of newspapers to street vendors throughout lower Manhattan.
And Outcault was doubtless thoroughly aware of the practice. So was Hearst and so was Pulitzer. When Outcault left the World in October 1986 to produce the Yellow Kid cartoon for Hearst’s Journal, the name of the feature was changed from “Hogan’s Alley” (the title used at the World) to “McFadden’s Row of Flats.” Clearly, the supposition at the Hearst paper was that the World “owned” the title “Hogan’s Alley.” And so the Journal expected to avoid legal action by changing the name of the cartoon. But the characters were the same in both features.
Still, Outcault evidently knew the value of owning the fruits of his creative labors. Just before leaving the World for the Journal, he filed an application (dated September 7, 1896) with the Library of Congress for copyright on “The Yellow Dugan Kid” (Mickey Dugan was the Kid’s actual name). Outcault’s letter describes the Kid’s unique features (big ears, bald head, only two teeth) and is accompanied by a sketch of the character. It’s not clear whether Outcault’s application was successful. He filed two more attempts before the end of the year, and while all three applications bear “copyright registration” numbers, those numbers may be simply log numbers, indicating that the application had been received. Ian Gordon (in his book, Comic Strips and Consumer Culture) reports that a letter from the Treasury Department dated April 15, 1897, “stated that on the advice of the Librarian of Congress the department held that only the title ‘The Yellow Kid’ and not the Kid’s likeness had been copyrighted because of an irregularity in the application.”
There seems to be no subsequent application so presumably Outcault was satisfied to have copyrighted just the name of his creation, whatever the “irregularity” in his application may have been.
And probably owning the name of one’s creation was sufficient. Outcault certainly went to court enough in later years. The Yellow Kid had been widely merchandised, his likeness appearing on all sorts of products. Presumably, Outcault profited not at all from these enterprises. And he doubtless resolved not to be left out in the cold ever again. In the teens, he formed an agency to merchandise his characters (mostly Buster Brown), and in those years, Winchester tells us, the cartoonist brought more than thirty lawsuits against entities that used his creations without permission or payment of fees.
That Outcault realized early the importance of owning a copyright to his character is evident not only in his 1896 applications for copyright but in one of the very earliest appearances of the character that later became known as the Yellow Kid.
The first cartoons with discernible Yellow Kids in them Outcault did for Truth magazine. A bald-headed toddler in a plain white nightdress first appeared in a cartoon published in the June 2, 1894 issue; then again in issues for July 14 and September 15 and February 9, 1895. The latter was subsequently reprinted in the World on February 17 (becoming, thereby, the first newspaper incarnation of the Yellow Kid; all four of the first Yellow Kids appear in our Gallery at the end of this scroll). The February cartoon depicts a street urchin who is painting large eyes on the face of another kid, saying, “Dere, Chimmey! If Palmer Cox wuz t’ see yer, he’d git yer copyrighted in a minute.” The prototypical Yellow Kid is but one of several witnesses to this witticism, and it’s the witticism that reveals just how widely it was realized that copyrighting something was a canny business practice. There’d be no joke here if Outcault couldn’t rely on his readers knowing that Palmer Cox had copyrighted his Brownies and was zealous in pursuing his creator’s rights.
The Yellow Kid stands at the threshold of comic strip history not so much because he was the first newspaper comic character (he wasn’t) or the first character to appear in “strip” form (he wasn’t) but because he demonstrated the enormous potential of newspaper cartoon features. He was, as I said, a combatant in the circulation war between Hearst and Pulitzer, and he was a significant enough figure in the fight to be recruited by both publishers. His significance is further attested to by his name being appropriated to describe the sensational journalistic techniques practiced at the Journal and the World —which were dubbed, by innocent witnesses to the warfare, “the Yellow Kid journals” or the “yellow journals,” hence, “yellow journalism.” And, finally, the widespread merchandising of the character showed newspaper publishers just how potent an economic force a popular newspaper comic character could be. Without such a creation as the Yellow Kid, it can be supposed that newspapers would have taken somewhat longer to install comics as regular features. But it was Palmer Cox, more than the Yellow Kid and Outcault, who demonstrated the merchandising prowess of a pen-and-ink creation and, thereby, the importance of copyrighting one’s characters.
Cox, born in 1840 in the Scottish settlement of Granby, Quebec, moved to San Francisco in 1862 where he built a business as a railroad contractor and spent his evenings studying art at the San Francisco Graphic Club. By 1870 he was illustrating his own humorous prose and verse for such publications as the Golden Era, Alta California, and the San Francisco Examiner. According to Wayne Morgan in an unpublished article, Cox, inspired by Mark Twain’s 1872 Roughing It, assembled his previously printed articles and illustrations for book publication as Squibs of California, and, after successfully approaching Twain’s publisher, went to New York in October 1875 to see his book published and, at the age of 35, to launch himself into a career as an artist and writer.
He began as a cartoonist. His earliest work in the city appeared in the Daily Graphic, one of the first newspapers to regularly use illustrations, including cartoons. Cox’s first published work there was a comic strip that he had sold to the paper before leaving California. Cox also contributed to Wild Oats, one of several humorous weekly magazines then on the newsstands (and, lasting eleven years, deserving to share history’s hallmark with Puck, Judge and Life). His first work for it appeared December 15, 1875, and a week later, the magazine published his 12-panel, 2-page comic strip, “Mr. And Mrs. Sticker Prepare to Kill Their Christmas Pig,” about a husband and wife who buy a live pig and take it home to butcher but are so frustrated that the husband finishes by blowing the pig to smithereens. Two weeks later, Cox was back with “The Adventures of Mr. And Mrs. Sprawl and Their Christmas Turkey,” subtitled “A Crashing, Chasing, Tearful Tragedy but Happily Ending Well,” each of its 24 panels accompanied by a couplet beneath. Both instances merely serving to demonstrate that the comic “strip” form was fairly commonplace by 1875. They also reveal Cox’s gift for physical comedy, of which we’ll have a few examples in the Gallery at the end.
Cox also did cartoons that commented on local events. Morgan describes one: “In ‘The Sharpness of the Brooklyn Police’ (February 2, 1976), two constables stand over a body which is face down with a knife protruding from the back. One officer responds to his cohort’s suggestion that they have come across another murder with, ‘Murder! Nonsense! It’s a clear case of suicide.’”
In 1876, Cox arranged for the publication of a self-covered booklet of humorous sequential drawings entitled Hans von Pelter’s Trip to Gotham in Pen and Pencil, about a rube from Hoboken. Writes Morgan: “While von Pelter views a sculpture of a nude in an art gallery, his satchel, loaded with sausage and Limburger cheese, attracts a dog. The statue is knocked over, and a trip to the courthouse ensues where the policeman and judge are driven out by the odor of the evidence, and Hans escapes to his Hoboken home.” The next year, Cox produced a similar booklet, How Columbus Found America, in which Columbus, after funding and equipping an ocean-crossing vessel to realize his life-long desire to discover the New World, finds his historic triumph spoiled when he encounters a Dutchman “who had accidentally been swept across the ocean and, upon arrival, had set up a saloon.” Consisting of 64 drawings at the rate of two per page, Columbus was the prototypical comic book. (Perhaps Hans von Pelter was, too, but Morgan doesn’t describe it, and since I’m relying on his work here, I can’t say.)
By the end of the decade, Cox was writing and drawing stories for children that were published in Harper’s Young People, Wide Awake, and St. Nicholas magazines. And in February 1883, he produced the first of a series with which his name would be linked for posterity, “The Brownies’ Ride,” in St. Nicholas. Three drawings depicting diminutive bug-eyed elfin characters with large heads were accompanied by rhyming text, the combination retailing the adventure of the Brownie Band in borrowing a farmer’s horse for a night and returning her by sunrise. Cox’s fortune was about to be made.
In assembling the Brownies, Cox was recalling his own youth, Morgan says: “As a child he had heard, from both his mother and his stepmother, Scottish folktales featuring brownies, who were members of the fairy world whose principal attribute was helping with house and farm chores while the household slept.” The essence of the Brownies’ appeal, Morgan goes on, is immediately evident in the inaugural tale: “the child-like curiosity and sense of fun, the democratic comradeship of a leaderless band in a parentless world and the investigation of the contemporary world.”
Over the previous several years, Cox had built his own successful advertising agency, and once the Brownies proved their popularity, he employed them as shills for his clients’ products. The Brownies sold Ivory Soap for Proctor & Gamble in more than forty ads that ran from 1883 to 1886, a period coinciding with Ivory Soap’s emerging dominance in the domestic soap market. According to Morgan, “Cox exercised full control over his creations. Although he could not copyright the word ‘Brownie’ since it was deemed to be in common usage, he consciously took full advantage of whatever protection existing legislation could afford his texts and images.” In short, he copyrighted every publication of his creations—much in the fashion of a newspaper or magazine.
“When copyright law became more inclusive in 1891, Cox immediately applied for a copyright and patent for [each of the] twelve Brownie characters (awarded January 15, 1892),” Morgan observes. “By this time, Cox had done comic strips and comic books, developed continuing characters in printed media, placed them in advertising, and was well on his way to developing licensing and merchandising.” Dolls and other toys soon followed. In 1887, the first of thirteen Brownie books had been published, and in 1903, Cox began a Brownie comic strip for the Sunday funnies at the New York Herald, hoping to create something for young readers that was more suitable than the vulgar comedic violence that then prevailed in the Sunday supplements. Entitled The Brownies in the Philippines, it featured a new Brownie who looked like Teddy Roosevelt. It was not widely syndicated, Morgan says, but a successor, The Brownie Clown of Brownie Town (1907-08), did better.
Cox remained a bachelor all his life, believing that marriage would interfere with a creative career. In a 1916 letter to an old friend, quoted by Morgan, Cox said he preferred “to fight alone without [any marital] responsibility” holding him back and maintained that had he married, “there would have been no Brownie Band roaming the world.” When he retired, he returned to Granby in rural Quebec, where he died in his Brownie Castle in July 1924.
Cox’s creation of iconic characters in popular culture was matched, easily—perhaps surpassed—by his business acumen. “Most significantly,” Morgan observes, “Cox’s success in owning his characters set the pattern for comic artists and children’s writers thereafter. He developed licensing and merchandising, two forms of commerce most associated with comics.”
But even Cox, for all his persistence and diligence, could not, at last, reserve the Brownies for his exploitation alone. Before long, others deployed his elfin creations, or, at least, reasonable facsimiles. And by 1900, Eastman Kodak had appropriated the name “Brownie” for its new diminutive camera—without permission—and used Cox-like Brownie characters in ads for the camera. By then, presumably, the term was commonly used in connection with anything small, much as “Kleenix” would later come to mean any tissue. As a further instance of poaching, in 1924, the year Cox died, A. Flanagan Company of Chicago published Ten Little Brownie Men by N. Moore Banta and Alpha Banta Benson; their Brownies looked just like Cox’s, with, albeit, some minor differences almost too slight to be noticed by anyone but a copyright lawyer.
But in the heyday of his Brownie production, and certainly in 1895 when Outcault was starting out, Cox was still pretty much in sole possession of his tiny Band, and Outcault and his readers were obviously familiar with Cox’s success. And other cartoonists were, too. Trying to secure ownership of one’s creation was not as unusual an occurrence as we might suppose. Rube Goldberg, for example, managed to own his characters and titles— Foolish Questions, The Look-a-Like Boys (which had a second life as Mike and Ike, They Look Alike, a title that became a catch phrase), I’m the Guy, Boob McNutt, and a host of others. Throughout his career, beginning in 1907, Rube’s shrewd father Max negotiated contracts for him in which his work was merely licensed to syndicates and newspapers. And it is more than likely that Goldberg was not alone in this.
Although creators’ owning their creations seems to be a recent phenomenon, it’s pretty clear that creator’s rights were on the minds of many pioneering cartoonists. So why weren’t more cartoonists successful in owning their own work? Why does that seem so unusual?
Probably because, as things worked out, creator ownership became increasingly harder to secure. In newspapering, as syndicates emerged in the teens and twenties, offering huge monetary rewards to those who signed with them, cartoonists chose big bucks rather than ownership. Syndicates insisted on retaining ownership in order to protect their investment: if a cartoonist became too ill to work (or too hungover) or died, the syndicate could hire someone else to continue the strip—without having to bother about royalty problems. Publishers of comic books (which began by reprinting newspaper strips) followed suit. In any event, the emergence in the closing decade of the last century (that is, the 20th) of creator ownership marks perhaps the final phase in an effort that was too soon abandoned in the infancy of the medium.
And now, a Gallery of Pertinent Pictures.
An earlier, shorter, version of this article appeared in Comic Book Marketplace No. 86 in October 2001. I am obviously in debt for much of the Cox material to Wayne Morgan’s extensive research which I discovered in an unpublished typescript.