Tuesday, May 31, 2016

WARRING WITH TROLLS, part 8

       "To live is to war with trolls"  -- Ibsen

This week I gave a talk on copyright law at the annual convention of the National Cartoonists Society (always a fun event).  My talk included an Eight Minute History of Thievery in Cartooning, recounting some of the colorful disputes over who created what.  This post is taken from that talk.

The history of comics is streaked with plagiarism like bacon is streaked with fat.

In fact, the very first comic strip resulted in a huge copyright battle.  Richard Outcault, who created the Yellow Kid in 1895, found himself competing with a duplicate Yellow Kid in a rival newspaper:

dueling Yellow Kids by Outcault (left) and George Luks (right)
Rudolph Dirks created The Katzenjammer Kids in 1897 but when he asked for a vacation his syndicate tried to replace him with another artist, Harold Knerr.  Dirks sued to regain his strip but after a long court battle,  Dirks and Knerr ended up with two virtually identical strips: The Captain and The Kids and The Katzenjammer Kids The two strips competed for audiences for 67 years, from 1912 to 1979.  When The Captain and The Kids finally folded, both creators were already dead.

Virtually identical characters by Dirks (left) and Knerr (right)
In 1933,  Ham Fisher hired a young assistant, Al Capp, to help with his comic strip,  Joe Palooka.   Capp noticed that one of the characters in the strip, a large bumbling mountain man called Big Leviticus, was popular with readers so Capp quietly developed his own strip about another large bumbling mountain man, Li'l Abner, and sold it to a rival syndicate.

A strong resemblance: Fisher's Big Leviticus (left) and Capp's Li'l Abner (right)
When Fisher discovered what Capp had done, he went ballistic.  He claimed that Capp had stolen his ideas, and reminded readers that "the original hillbillies" were in Joe Palooka.  His ads urged readers not to be "fooled by imitators."  Capp and Fisher descended into a bitter feud which lasted 20 years.  When Fisher finally committed suicide in 1955, Capp crowed that he considered it “a personal victory,” saying that driving Fisher to suicide was his "greatest accomplishment.” 

As you can tell, the early years of cartooning saw a lot of heated battles involving different kinds of borrowing, copyright infringement and plagiarism.  But cartoonists in the early decades never dreamed how sophisticated and lucrative theft could be.  In later years, what was once criticized as "theft" came to be renamed "appropriation art" or "repurposing" or "transformative use" or "sampling" or "re-contextualiation." What all of these new categories have in common is that they represent minor, unimaginative art. 

The legitimization of this type of borrowing began with pop art.  Bill Overgard's panel from his 1961 strip, Steve Roper was copied by Roy Lichtenstein.  When reporters questioned Lichtenstein he responded, "What I do is form, whereas the comic strip is not formed in the sense I'm using the word."  Overgard replied, "he said he never copies them exactly, [but] he comes pretty close..."



Fast forward a couple of decades and you encounter the fine artist Erró (Guðmundur Guðmundsson) who specializes in copying other people's comic art, redrawing it in a mash up, and selling it as his own fine art.  When cartoonist Brian Bolland visited the gift shop at the Pompidou Center in France, he found that Erró had copied Bolland's cover for Tank Girl in a fine art poster.  Bolland's name had been carefully deleted from his picture.
Bolland standing in front of Erró's poster
Bolland wrote a long, thoughtful letter on social media which shamed Erró into turning over his unsold inventory of prints to Bolland.

But Lichtenstein and Erró are amateurs compared to Richard Prince who shamelessly steals from illustrators, cartoonists and other commercial art.  For example, Prince copied this cartoon as a work of fine art...


...which recently sold at auction in 2012 for $812,500:



Once when Prince was sued for copyright infringement, he offered this legal theory for his borrowing, along with his personal opinion of the lawyer who filed the lawsuit:
I hated that lawyer; that lawyer was really an asshole.  I just wanted to be like-- my attitude was like, Dude, this is my artwork, and you are a square.  You are a fucking square.  For me, it's like I wasn't going to be a part of his world, I wasn't going to acknowledge his world. ... Copyright?  That's absurd."
Finally, no history of theft in cartooning would be complete without mentioning ebay.   An excellent example is the following gentleman who, under the name "fosworld," was selling fake Calvin & Hobbes artwork as originals on ebay.

 

The scam was easy to confirm because the cartoonist, Bill Watterson, had donated those originals to The Billy Ireland Cartoon Library and Museum at Ohio State University where they reside today.  When confronted, the seller continued to sell the fake strips, dodging and weaving and offering various excuses.  Complaints to ebay about the seller were slow to get a response; ebay is notorious for ignoring intellectual property rights in situations where ebay might make a quick buck from somebody else's fraud.

Finally the outrage over the Calvin & Hobbes forgeries became hot enough that fosworld quietly shifted to other, less troublesome inventory.  To my knowledge none of fosworld's victims ever got their money back.  If you encounter one of them, tell them to write fosworld. 

Theft in cartooning continues to mutate and evolve as fast as cartooning itself, and the internet is the perfect petri dish.  Be careful out there!



32 comments:

Clayton Hollifield said...

It amazes me that it's easier than ever to find the source artwork that's being "repurposed," and yet this kind of brazen thievery seems more and more common.

Great read!

kev ferrara said...

Rather than advocate the murder of Prince and the firebombing of Christies, I'll just add fuel to the ire... this is from Christie's website:

Lot Notes

"What a kid I was. I remember practicing the violin in front of roaring fire. My old man walked in. He was furious. We didn't have a fireplace." When said aloud, it is difficult not to automatically insert the Yiddish inflections of Catskill comedians, Jack Benny or Milton Berle, into this classic borscht belt one-liner. Coupled with a comic one-panel gag, a seductive cartoon that satirizes the marital morals of the 1950s and '60s, culled from the pages of a vintage Playboy magazine, Prince creates deliberate confusion. What a Kid I Was (1988) is a classic example of the attraction, deceit, and failure found in Prince's iconic Joke and Cartoon paintings, which he uses to play upon the hostility, fear, and shame that fuels American humor.

Master miner of mass media imagery, Prince has famously appropriated a wealth of images from Marlboro ads to the covers of pulp romance novels. In 1987, he began appropriating jokes and cartoons in his work. Noting, "No, I'm not so funny. I like it when other people are funny. It's hard being funny. Being funny is a way to survive," he sought out to amass a generous collection of one-line jokes and single frame cartoons. (R. Prince quoted in "Like a Beautiful Scar on Your Head," Modern Painters, Autumn 2002) Struck by the cartoons of Whitney Darrow, which appeared in the New Yorker in the 1950s and '60s, Prince became entranced by the comic illustrators ability to align his work with the tenor of the time. The cartoons, like the advertising images, reflected a certain concealed knowledge of cultural tastes, cravings, and prejudices. Furthermore, they reflect the notion that humor captures the tragedy of everyday life and makes it pleasurable-if even just for a moment.

Initially interested in the cartoon for its lowbrow form of expression, What a Kid I Was simultaneously balances the antiheroic methods behind Prince's Photographs, Cowboys, and Girlfriends; the content and minimalist aesthetic of his Monochrome Jokes; as well as the clean lines in his Hoods series. Citing that comics are more than part of the whole, Prince states, "Jokes and cartoons are part of any mainstream magazine. Especially magazines like the New Yorker or Playboy. They're right up there with the editorial and advertisements and table of contents and letters to the editors. They're part of the layout, part of the 'sights' and 'gags.' Sometimes they're political, sometimes they just make fun of everyday life. Once in a while they drive people to protest and storm foreign embassies and kill people." (R. Prince quoted in B. Ruf (ed.) Jokes and Cartoons, n.p.)

Li-An said...

Well, I made a gallery about fake Moebius work sold on Ebay... and in some official sellers...

Donald Pittenger said...

At least Prince can be credited with those photos of motorcycle molls. Um ... he did take them himself, didn't he? Um ...

Richard said...

> "Well, I made a gallery about fake Moebius work sold on Ebay... and in some official sellers..."

Li-An, as someone who just purchased a bunch of Moebius work on Ebay, I would love (and am horrified) to see this.

Richard said...

Oh, here we go:
http://www.li-an.fr/blog/faux-moebiusgiraud-fake-drawings/

BTW, great blog Li-An

Li-An said...

Thanks :-)

David Apatoff said...

Clayton Hollifield-- We live in an era of disintegration, so it no longer suffices to be disdainful of hedge fund managers who choke the system with money and bad taste, or their geishas, the auction houses and galleries who use their eloquence and promotional skills to inflate the importance of such minor art. The problem has spread to high school and college students everywhere who copy with ease but without remorse. You also find the symptoms of the disease among the less motivated illustrators and art directors who, between snores, churn out "photo-illustrations."

All that people with dignity can do is hold their heads up and adhere to their own standards.

Kev Ferrara-- I suppose it takes a village to perpetuate fraud on this scale. Still, I'm baffled how anyone with the money to afford a painting by Prince could be taken in by his Chauncey Gardner platitudes such as "It's hard being funny." I am going to print out your text from Christies and keep it in my file labeled, "Reasons Why A Thermonuclear War That Extinguishes All Human Life And Causes the World To Start Over Is Not A Totally Bad Thing."

Li-An-- Thank you for performing a public service.

David Apatoff said...

Donald Pittenger-- If by "take" you mean lift them from some source and put them in his pocket, I'm sure he did.

Richard-- I hope, after reviewing Li-An's web site, you have no cause for distress. Thanks for the link.

I hope that the purchasers of fosworld's counterfeit Calvin & Hobbes strips are able to get their money back.

Tom said...

David said;

"We live in an era of disintegration," as the Chinese say the "fish rot's from the head."

I think it is interesting that Roy Lichtenstein's made the nose so long and push the orbit of Steve Roper's eye way to close to his eye ball. Plus Overgard's little panel in the bottom right hand corner of his picture really brings the composition to life.

Copying, or "appropriating" is more like choosing or shopping then creating.

Thanks for the post David.

kev ferrara said...

I am going to print out your text from Christies and keep it in my file labeled, "Reasons Why A Thermonuclear War That Extinguishes All Human Life And Causes the World To Start Over Is Not A Totally Bad Thing."

I laughed a little too strongly at the above. Now I'm slightly worried about myself.

Regarding said "Lot Notes" - what strikes me more forcefully each time I reread it is the banality of the evil, the wan, pointlessness of the writing, the sloppiness; the casual, conversational way the writer continually "mistakenly" compliments what the original cartoonist did rather than what Prince "did." (Without, of course, mentioning what Prince actually did do with respect to the lot for sale.)

At the surface level this juxtaposition of praise for, or discussion of, the original cartoon in the context of the lot having Prince's name on it seems to "accidentally" associate and even credit Prince with the creation of the original cartoon. But this disgusting tactic - a fraud by Christie's really - is also a kind of coded admission that Prince actually added nothing of value to the lot; that the entire value, everything worth dwelling on, was the original artist's doing.

Let it not go unnoticed: The lot notes do not actually credit the original artist. "Whitney Darrow's" name is mentioned, but never is that name specifically pointed at the cartoon. Authorship, as a concept, goes unmentioned. This is not accidental, of course. The tactic of mentioning the name in the context of the lot is surely some kind of attempt at establishing deniability for Christie's part in the fraud - as I see it, another coded admission of guilt.

Further linguistic abuses: Note that the mentions of Prince, his fame, his "reflections on humor" are simply slipped in; they don't occur in defense of some point or other, there is no necessity to their placement in the text. As there is no logical flow anyway, no point to the essay, nothing provable that would help the sale. Prince's name is simply invoked in reference to the lot.

In the essay, all that is actually enlisted to prop up Prince's "act" itself are the buzzwords - which were developed by the useless postmodernist academics who spent their undeserved positions laying smokescreens of jargon around their own mediocrity. (May they all, in due course, be chased into the poverty they deserve.)

The fugue-like vagueness to the lot notes, the complete lack of any kind of mental rigor or virtue, makes it an exemplar of postmodern simple-minded immorality. As much a work of "postmodern art" as Prince's theft.

Not to put too fine a point on it, but Postmodernism is the last refuge of scumbags.

Tom said...

The post also reminds me of Le Corbusier, who said, "I prefer drawing to talking. Drawing is faster and leaves less room for lies."

Li-An said...

Well, Le Corbusier talked a lot in fascist reviews...

David Apatoff said...

Tom wrote: "Copying, or "appropriating" is more like choosing or shopping then creating."

I hadn't thought about it that way, but it would certainly explain why appropriation art has taken root in our culture so strongly. I like it!

"Drawing is faster and leaves less room for lies."

Bill Watterson agreed: "Every line you draw drops your pants."

Kev Ferrara-- I agree. At first I though the Christies text was trying to achieve a light, stylish stream of consciousness effect. But a second (painful) reading persuades me that your diagnosis is correct. The "wan, pointlessness of the writing" and especially "the sloppiness" is inescapable. If you've ever heard artistic geniuses such as Prince or Tracey Emin speak, they seem almost illiterate. Their vocabulary is rudimentary and their grammar erratic. I always assumed that's why artists needed polished agents with the gift of gab to represent them. If Christies isn't packaging these works in pretentious rhetoric, I don't know what function they serve.

Li-An-- Even fascism has gotten dumber. Mussolini started out as an intellectual. Ezra Pound appeared in fascist journals. Today we have Donald Trump.

bill said...

After listening to a couple of Trump interviews I wonder if he and Prince are related.

Laurence John said...

Tom wrote: "Copying, or "appropriating" is more like choosing or shopping than creating."

I'm sure Richard Prince sees himself as a 'curator' of cultural artefacts or something grandiose sounding like that.
Just the latest in the tired old 'readymade' parade: Hirst, Koons, Warhol etc.

Duchamp, so much to answer for.

Richard said...

>"Just the latest in the tired old 'readymade' parade: Hirst, Koons, Warhol"

And don't forget tagging, which is talked about as a sort of autobiographical curation of ready-made locations.

kev ferrara said...

The anti-Al Capp version of events regarding "Big Leviticus" presented herein is based on presumptions and, it seems clear, some irrelevant antipathy. Al Capp was no prize as a human, but Ham Fisher was no angel either and with a lot less talent. We know for a fact that Big Leviticus' first appearance in Joe Palooka was drawn by Capp. It is hardly a stretch to imagine he came up with the character in toto as he often claimed, while Fisher was making a fool of himself on vacation chasing Dietrich (Dietrich's biographers, by the way, put Fisher on the boat having drinks with Dietrich.)

Regardless, the Leviticus character was nasty and a boxer while L'il abner was sweet-natured and lazy. They clearly look different, BL ratty and rat-like, while L'il abner is clean and wholesome. Whether they dress different -- I haven't been able to find a picture of what BL looked like in his early appearances, but the appearance you've posted is a late one, at least a decade after Capp originally drew into Fisher's strip. So your panel by panel comparison may be misleading.

David Apatoff said...

bill-- I don't know what their DNA would say but they are certainly related spiritually.

Laurence John-- How could Duchamp know that later generations would take his idea and beat it to death? At the start, Duchamp was just a beleaguered minority, subsisting on the kindness of strangers and free to behave heedlessly because his ideas had no consequence. Back then, the traditional art establishment looked like it would dominate forever.

Richard-- I've heard Koons lecture and he seems very unlike the superstar artists who babble mindlessly. Koons started out as a door to door salesman with a gift of gab, and has not changed. He gets his foot in the door and doesn't remove it until he has completed his smooth sales pitch.

Kev Ferrara wrote: "We know for a fact that Big Leviticus' first appearance in Joe Palooka was drawn by Capp. It is hardly a stretch to imagine he came up with the character in toto as he often claimed, while Fisher was making a fool of himself on vacation chasing Dietrich "

We know that for a fact because Capp told us so, but Capp was a shameless liar. He was smarter and more nimble than Fisher, dancing around him and inflicting a thousand cuts while Fisher would swing wildly (and ineffectually) at his nemesis. Capp was writing columns for the Atlantic and giving interviews to Playboy with Capp's side of the story and his version became hardened into history because Fisher was not articulate enough to charm those audiences.

For example, Capp convinced the world that Fisher had defamed Capp by re-drawing Li'l Abner strips to introduce pornographic elements, but Morris Weiss, who knew them both well and lived through the battle, said that Fisher's only alteration of the art was removing a final panel to direct greater attention to Capp's hidden sexual references. Years later, after the full scope of Capp's obsessive sexual misbehavior has come out, it is much easier to believe that Fisher was correct, and that his former assistant did like to play games with hidden sexual messages. Back then, no one could believe it of Capp. (I've spoken with someone very close to Frazetta who claims that one of Frazetta's major reasons for leaving Capp was that Capp kept sniffing around Ellie and Frazetta didn't like it. Of course, Capp later lied and denied that Frazetta had ever worked on Li'l Abner).

The recent Dennis Kitchen book about Capp takes up the precise point you raise-- did Capp invent Big Leviticus? They conclude that the first Big Leviticus script was already written when Capp started working for Fisher, and that Fisher was not on vacation with Dietrich when the first Big Leviticus story was drawn and published. They do conclude that Capp drew the Leviticus character as Fisher's assistant, although no one knows who had what kind of creative input. They conclude: "Capp had people believing in all of his retellings of the story after the birth of Li'l Abner.... Ham Fisher seems justified in some of his claims against Capp.... Capp's story about the vacation and his taking over the strip with his hill people is typical Capp: part truth, part fiction."

I do plead guilty to your point about my "irrelevant antipathy" toward Capp (although some of my antipathy is, I submit, relevant). The fact that Bill Cosby turned out to be a monster is technically irrelevant to the quality of his TV show. I suppose that if Cosby's crime were robbing a bank, it wouldn't even cross my mind to raise it. But there are some kinds of misconduct, such as preying on weaker human beings, which seems always relevant to me. It is difficult for me to resist taking a poke at such predators whenever the opportunity presents itself.


kev ferrara said...

We know that for a fact because Capp told us so, but Capp was a shameless liar.

Actually we do know for a fact that Capp had a hand in drawing the first Big Leviticus strips. Given what we know about Fisher using assistants and hiding their existence from each other, I would posit that Fisher's hand in the BL strips is more in question than Capp's.

Whether the unauthorized bio by Schumacher and Kitchen is the unquestionable source on whether Fisher was actually on vacation or not when Capp drew on the Big Leviticus strips, we can debate. I'm not sure their argument takes into consideration what the actual lag time was for the Palooka strip to go to print. The timing of the creation of the original BL strips and Fisher being on a cruise line vacation (and oafishly chasing after Dietrich thereupon) are certainly well within the ballpark of synchronicity.

Anyway, I think you'd admit that much of what you just wrote to express why you think Al Capp ripped off Ham Fisher is definitionally Argumentum Ad Hominem. Of course, two can play that game.

As well, Fisher's ouster by the National Cartoonist's Society, which he helped found, suggests Capp wasn't the only witness to Fisher's flaws.

Anyway, the sole issue under debate here is whether L'il Abner was "ripped off" from Big Leviticus. The answer on the face of it is clearly no. The similarities stop with the fact that they are both strong hillbillies. They're utterly different characters outside of that fact and it is absurd to contend otherwise.

And, by the way, your pairing of an image of a red shirted Big Leviticus next to a red-shirted L'il Abner as a visual "proof" of there being an infringement is in grossly bad faith. If you can find a Big Leviticus that was colored red BEFORE L'il abner was colored red, then you'll have something. But, in point of fact, the BL strip you posted is a late one and the red color may very well be an indication that Fisher was trying to make BL seem more like LA thus would tell against your preferred narrative. (I'd be interested to be proven wrong on this point.)

But let me take this a step further, because something's just clicked for me... the one thing we do know for sure is that Al Capp was a lot more talented than Ham Fisher as an artist, and a hell of a lot more well-read and bitingly witty than him. L'il Abner is rightly considered a classic of satire. It is replete with barbed commentary of all sorts, sexual, political, social, economic... While Joe Palooka is much more genteel and down-home, akin to Gasoline Alley or Family Circus.

Now, keep that in mind when you consider the following: There is a standard joke about inbreeding among hill folk which is widely known. It just so happens... just... so... happens... that the verses of Leviticus go into what kinds of sexual congress are permissible among the flock... with particular reference to inbreeding.

Now, tell me if that sounds like Ham Fisher to you. Because it sure as hell shrieks of Al Capp to me.

David Apatoff said...

Kev Ferrara-- I think our difference on Big Leviticus unearths a larger and more interesting point: how we reach historical conclusions when eye witnesses differ. It seems that you and I come out differently because you are willing to give the benefit of the doubt to Capp while I am willing to give the benefit of the doubt to almost anyone who is opposed to Capp.

I think that lawyers do a much better job of dealing with factual uncertainty than historians. The law is called upon to reach a conclusion using the best available information and an adversarial process, while historians are free to fondle possibilities endlessly while selling books and promoting their own careers. The law has learned to apply a two part test for resolving disputes in any particular case: 1.) which side has the burden of proof; and 2.) what standard of proof must that side satisfy (for example, should it be "beyond a reasonable doubt"? "preponderance of the evidence"? "rational basis"?)

You and I start out by assigning the burden of proof to opposite sides. You fault the Kitchen / Schumacher book for being "unauthorized" while I applaud it for being so. You're "not sure their argument takes into consideration what the actual lag time was for the Palooka strip to go to print" but I have no reason to believe it doesn't. You don't know if Big Leviticus wore a red shirt before Li'l Abner, and I have no reason to believe that he didn't. You think Kitchen and Shumacher have the burden of proving that Fisher's cruise with Marlene Dietrich did NOT take place during the creation of Leviticus, just because Capp told the world that it did. Kitchen and Shumacher write that it did not, that the cruise took place during a subsequent episode involving BL but that Capp conflated the two events because it made for a better story. You think Kitchen and Shumacher have failed to satisfy their burden of proof because the two events are "well within the ballpark of synchronicity." So basically, your presumptions in favor of Capp determine your outcome, just as my presumptions against him determine mine.

I agree with you that "one thing we do know for sure is that Al Capp was a lot more talented than Ham Fisher as an artist, and a hell of a lot more well-read and bitingly witty than him." But for me, that doesn't mean Capp deserves the benefit of the doubt. Capp wrote the history of this dispute; he ran circles around Fisher, captivated all the audiences that mattered, and controlled popular wisdom. He took partial credit for driving Fisher to suicide, so Capp had the microphone all to himself for many years.

(cont.)

David Apatoff said...

(cont.)

Perhaps Capp's audience of sophisticates wouldn't have been so easily charmed if they knew, as we now know, that Capp was a rapist and serial molester of young women, that he was a pathological liar who preyed without remorse on the weaker and more vulnerable people around him; and that toward the end of his life his resentments turned him into a bitter, mean spirited person. When he lectured on college campuses in the 1960s it drove him nuts that he was born too late to participate in the sexual revolution he witnessed. The old lecher tried to bully young coeds into submitting to him, lied when they reported him, and used his powerful connections to squelch their testimony. When he interviewed John Lennon in the 60s, it was with the sole purpose of taking Lennon down. He had no curiosity for the new world that Lennon or the Beatles might represent, he wanted only to deflate them.

How is his personal misconduct relevant? I know that some considered Al Capp a new "Mark Twain" back when hillbilly humor was considered new and exciting. I know that he contributed many words and phrases to the American lexicon (all of them detailed, along with Capp's other fine attributes, in the Kitchen /Shumacher book). And there is no doubt that he was a better artist / writer than the poor plodding Ham Fisher, who was outsmarted from the start by Capp. But personally, when I tally up the sum total of good that Capp's talent contributed to the world, and balance it against the personal harm that he caused, it causes me to shift the burden of proof to Capp; any credit that he is going to earn in my eyes has to be proven to me, inch by inch.

kev ferrara said...

David,

Of course, you being a lawyer, you must know that if a crippled, hypertensive, manic-depressive 50-something conservative cartoonist in constant phantom-limb pain is arrested on a charge of attempted rape, then he must have been a plagiarist in his 20s.

That's just good sound reasoning.

Although, strangely, when I would visit my father as he plied his trade as a Trial Attorney, this kind of argument tended not to fly with judges. Can't imagine why.

_______

I'll do a bit of restating here; cut and pasting actually relevant points which you somehow ignored, just in case you want to stop campaigning for sainthood (really glad you finally came out against rape and lying) long enough to actually take up the actual argument (this drum and no other, if you please):

-------

Anyway, the sole issue under debate here (as per your post) is whether L'il Abner was "ripped off" from Big Leviticus. The answer on the face of it is clearly no. The similarities stop with the fact that they are both strong hillbillies. They're utterly different characters outside of that fact and it is absurd to contend otherwise.

And, by the way, your pairing of an image of a red shirted Big Leviticus next to a red-shirted L'il Abner as a visual "proof" of there being an infringement is in grossly bad faith. If you can find a Big Leviticus that was colored red BEFORE L'il abner was colored red, then you'll have something. But, in point of fact, the BL strip you posted is a late one and the red color may very well be an indication that Fisher was trying to make BL seem more like LA thus would tell against your preferred narrative. (I'd be interested to be proven wrong on this point.)

But let me take this a step further, because something's just clicked for me... the one thing we do know for sure is that Al Capp was a lot more talented than Ham Fisher as an artist, and a hell of a lot more well-read and bitingly witty than him. L'il Abner is rightly considered a classic of satire. It is replete with barbed commentary of all sorts, sexual, political, social, economic... While Joe Palooka is much more genteel and down-home, akin to Gasoline Alley or Family Circus.

Now, keep that in mind when you consider the following: There is a standard joke about inbreeding among hill folk which is widely known. It just so happens... just... so... happens... that the verses of Leviticus go into what kinds of sexual congress are permissible among the flock... with particular reference to inbreeding.

Now, tell me if that sounds like Ham Fisher to you. Because it sure as hell shrieks of Al Capp to me.

David Apatoff said...

Kev Ferrara-- Before I respond to your point about plagiarism, thank you for creating one more opportunity for me to take a poke at Capp: Do not shed any tears for Capp being "arrested on a charge of attempted rape," unless you've read the accounts of Goldie Hawn, Grace Kelly and all the others he invited up to see him with false promises of employment, then physically mauled. The ones who were strong enough and principled enough to escape from his grasp with only torn clothing he verbally assaulted and insulted (the 58 year old Capp yelled after a teenaged Goldie Hawn as she fled that she would never make it in show business unless she put out). He had a traveling road show where he went from campus to campus and ambushed young girls with the help of an assistant. Some distraught girls had the courage to report his assaults to the university, and security escorted Capp off the university premises and instructed him never to come back, but in those days no one had the courage to report him to the police because he was too powerful, so he descended upon his unaware victims on the next campus. Even the powerful columnist Jack Anderson was reluctant to run the story after the young Brit Hume investigated and confirmed Capp's odious conduct. Anderson finally issued a much softened version which many newspapers chose not to run. When someone finally found the courage to file "a charge of attempted rape" against Capp, he used the same wiles he employed against poor Fisher to turn the tables on her. He claimed it was all part of a radical plot by the hippies to discredit an important ally of Richard Nixon, and his underlings reached out to friends in the Nixon White House and the Justice Department to try to crush the poor girl's case. He had powerful lawyers like Edward Bennett Williams, powerful authors such as Art Buchwald, and along list of cold warriors assuming he was right and rallying to his cause. That, my friend, is why only one person dared to charge Al Capp with attempted rape.

But to return to the plagiarism rap, I agree that Fisher could never have developed Li'l Abner by himself. But even if Capp had single handedly invented both BL and LA while he was on Fisher's payroll, Fisher had a good legal argument that they were work for hire, in which case the copyright would belong to Fisher. There were differences between the two big hillbillies certainly, but there were similarities as well (calling one "big" and the other "Li'l"). I don't know what to tell you about the red shirt; I've never seen BL in any other color shirt, but I've only seen two or three images of him in color so I just don't know.

But that's exactly my point: when I don't know, Capp has the burden of proving it in my book. If there is no evidence either way, then Capp has failed to meet his burden of proof, which means he loses. He lied too often, and too glibly, not just about his female victims and Frazetta and the politics of his enemies, but also about the timing of Fisher's cruise with Dietrich with Kitchen and Shumacher tracked down to my satisfaction.

If there's not enough proof to confirm one side or the other, then Capp loses. I figure he's earned it.

kev ferrara said...

David,

I've read all about Capp's shenanigans with various starlets and coeds. Odious doesn't begin to express it. However, his behavior is entirely in keeping with someone who is mentally ill. And he was a diagnosed manic-depressive, to the point of hallucinations, which is a quite severe state of the disease (his hypertension would have only exacerbated the severity). My guess is that he went undiagnosed for much of his life - through various ups and downs, so to speak. And then, given the inchoate state of the science regarding pharmacological interventions, he was never quite correctly medicated even when his illness had been identified later in life. (If you've ever known a bipolar individual, you know it is very difficult to disentangle the disease from the personal failings.)

But I don't think Capp's mental health (or its flipside, your "burden of proof" protocol) need be weighted or considered comparably to the simple available evidence we have. The basic, bald fact is that L'il Abner just isn't like Big Leviticus except in superficial ways. And this lack of similarity, I think, is corroborated by other facts: Given the antipathy between these two men, I think if the plagiarism had been actionable, Fisher would have gladly taken Capp to court. Fisher certainly had the money to put the case. But, according to what I've read, Fisher's lawyers told him he had no chance of winning. And that's why there was no actual lawsuit.

The idea that Fisher "owned" Capp's off-hours side-work, (owned Capp, really) and thus had a claim to the ownership of the L'il Abner strip is a strange one. Particularly coming from you. Fisher, again, would surely have pursued whatever viable legal case against Capp he and his lawyers could have come up with. Yet they filed nothing. Case closed, as far as I'm concerned.

David Apatoff said...


Kev Ferrara wrote, "The idea that Fisher "owned" Capp's off-hours side-work, (owned Capp, really) and thus had a claim to the ownership of the L'il Abner strip is a strange one."

Kev, under the "work for hire" provisions of the copyright law, "a work prepared by an employee within the scope of his or her employment; or... a work specially ordered or commissioned for use as a contribution to a collective work" is owned by the employer, not the creator as long as certain requirements (such as a written contract) are met. If Capp created everything about BL from start to finish as part of his job on Joe Palooka, I think it's pretty clear that Fisher, not Capp, owned the copyright and trademark for BL. If Capp created LA after hours (rather than using Fisher's art supplies and drawing board during his normal work time, when Fisher was off on one of his vacations) then I think it's pretty clear that Capp owned the copyright to LA. Then the only question becomes whether LA infringes the BL copyright or trademark. Who knows? Look at the unsatisfactory mess that the law made of the Katzenjammer Kids or the Yellow Kids back then. The law has sharpened a lot over the last 75 years. Today I think there's a better argument for trademark infringement than copyright infringement, but both would be an uphill (not impossible) case.

The symptoms of mental illness you describe ("manic-depressive, to the point of hallucinations, which is a quite severe state of the disease") might help explain his behavior but don't they also make him a less reliable witness?

kev ferrara said...

David,

I know the copyright law. I assumed Capp was creating the work at home. But I've just checked the relevant passages from the Kitchen-Schumacher book, and their understanding is that Capp created the samples for Li'l Abner when unemployed. So I don't see the application of the copyright law at all now.

I agree that Capp's manic-depression would only add to his unreliability. Which is why, above, I suggested it didn't matter what he claimed. Ham Fisher was unreliable too. At the end of the day, the simple evidence we have is all we need and, really, all we have. With that evidence as our guide, I think it is quite plain that Li'l Abner is very different from Big Leviticus. (Your red-shirt demo is, again, a bad faith attempt to manufacture contrary evidence out of whole cloth. You should renounce and remove it.) And Ham Fisher's lawyers apparently agreed that there was little similarity to go on. Which is surely why Fisher, going mad himself, switched from absurdly claiming credit for Capp's entire Hillbilly Milieu, to slandering Capp's creation as pornographic, which led him downhill.

Outside of the law, again, I think the snarky wit of the name Big Leviticus for a hillbilly (given the passages in that section of the bible on incest), tells in Capp's favor. I don't think Ham Fisher had that kind of erudition or cleverness.

Accept the fact: Many geniuses have been terrible people.

David Apatoff said...

Kev Ferrara-- After I'm gone and it is revealed that I plagiarized all of these blog posts from an elderly widow I keep chained in my garage, and wrote them out in the blood of puppies that I strangled, I'd like to designate you as my official defender.

PS-- I've never seen BL in anything other than a red shirt. Perhaps you are better at searching on line than I am?

PPS-- "genius"? Maybe that would've been a more fruitful subject for discussion. I agree Capp had some clever years in the 30s; he was an excellent satirist. But even then I was not wowed by his drawing-- can you point me to some genius level examples? Or examples of genius writing? Shmoos perhaps? I think Capp deserved the huge following he built in the 30s, but he milked it for decades, Jim Davis style. Perhaps you mean he was a genius at marketing?

kev ferrara said...

After I'm gone and it is revealed that I plagiarized all of these blog posts from an elderly widow I keep chained in my garage, and wrote them out in the blood of puppies that I strangled, I'd like to designate you as my official defender.

It sounds like we're in agreement that you lost the argument.

I've never seen BL in anything other than a red shirt. Perhaps you are better at searching on line than I am?

You took a Big Leviticus shot from the late 1940s, the single one you could find online (let's be honest), and used it to show that Capp had ripped off its design starting 15 years earlier. Being a good lawyer, you should know this kind of Argumentum Ad TimeTravelus only holds true in the Bermuda Triangle.

But even then I was not wowed by his drawing-- can you point me to some genius level examples?

Wow, you're really pinning badly on this subject. Obviously I'm not going to be able, with words, to break through your emotions about Capp. I don't have the codes to lower your shields. But, for those who appreciate his work, and there are legions, Al Capp was an excellent stylist, a wonderful caricaturist and character-designer, with a helluva deft drawing touch (as Frazetta was quick to point out) coupled with a very strong design sense. With these skills as his starting point, he went on to create his own silly, sparking, quasi-mythical realm of Dogpatch which arced into the zeitgeist for a good two decades, functioning as a farm system for quite a number of mainstream satirical and metaphorical cultural touchstones. To objectively appreciate what he did, you have to put away your picayune magnifying glass, unfold your arms, and unclench your undercarriage. It isn't any one panel or strip that tells the tale, its the totality of what he created and how it related to his era. Its the same with Walt Kelly, Gary Larson, Charles Shultz or Bill Watterson. You might love one particular strip or joke, or not. But as the Sundays and dailies begin to pile up, the surface symbols begin to fall away, and one senses a wholly imagined, fully realized world drawing breath. And this imagined world held real estate in the real world; a magic end state for any creative endeavor. My grandmother's generation, my great aunts and uncles were quoting Capp-isms to their dying days and smiling.

David Apatoff said...

Kev Ferrara wrote: "It sounds like we're in agreement that you lost the argument."

Actually, if you go back and read my reply, my point was that even if I was guilty as sin, I could rely on you to fight and fight for me and never let go. What better advocate could I ever want?

kev ferrara said...

Actually, if you go back and read my reply, my point was that even if I was guilty as sin, I could rely on you to fight and fight for me and never let go. What better advocate could I ever want?

I wasn't about to chase your red herring across the pond surface, David. What struck me instead was that the charge of bitter ender came just at the point that your specific arguments for plagiarism were either reduced to their not-very-compelling essence (Both characters are muscular hillbillies and at some point both wore red, ergo plagiarism) or shown to be contrary to fact (your assumption that Capp was working in Ham's employ, in his studio when he created Li'l Abner and therefore under a work-for-hire agreement.)

To not admit that the former argument is meek and the latter vapor, to not acknowledge as telling that Fisher never put his lawyer-dollars where his accusatory mouth was, or that it is more likely that Capp's acerbic wit would have come up with Leviticus as the name of a bumpkin rather than Fisher's more genteel sensibility... makes your obstinacy charge seem projective.

Frebnedzo said...

Taking one of Lichtensteins comic panels in isolation is a bit like judging John Cages musical output by 3'33". Lichtensteins comic panels were not just 'swipes', they were blown up, modified, chosen for autobiographical and/or political relevence and part of a 'fine art' reaction against abstract expressionism. (The Bay Area Figurative artists were a different reaction, I'm sure most people here understand how dominant AE was in 'fine art' in the late 50's). His 'value add' is lost when scaled to the same size as the 'original' and reproduced on a computer screen. But these are a small portion of his total career, he also 'did' abstract expressionism using the same techniques, incorporated other modern quotes into his paintings (cubism, Picasso, Matisse), did many variations of unlikely subjects using the industrial techniques he got from popular publishing (mirrors). His output was always ironic and not limited to variations on comic artists.

Prince I am less convinced by, but no-one seems to have noticed (including Sothebys) that part of his 'value add' in this cartoon series (besides rendering at 'fine art' sizes and positioning in museums and galleries) is that he swapped the original cartoon captions with the pictures. However meaningful one finds this, it is not a 'swipe' as such.

The Katzenjammer example is plagiarism because there is NO value add, it is the same characters presented in the exact same context (newspaper comic). The Bollard poster, like the artist who took science fiction book cover paintings (by Foss?) and re-rendered them for markup as 'fine art', these too seem like plagiarism because there is so little value add.

A question though is why SOME artists get away with 'appropriating' Disney or Terry and the Pirates and others are not. Similarly, why are some artists successful in law suits against plagiarism and others are not (Robert Crumb and Keep on Truckin). One would almost think that the legal system and/or capitalist society favors some plagarizers/plagerizees over others.