Hard as it may be for some people to believe (everyone under 30, raise your hands), there was a time in American commerce when we did not buy licensed merchandise. In the 1950s, Walt Disney created the first market for kid's merchandise, initially with Mickey Mouse, but even more so with the surprisingly successful Davy Crockett craze. But aside from kids buying lunchboxes and coonskin caps, Americans did not adorn their apartments and homes with image-laden posters, bathmats, towels, and sheets and did not wear trademark-adorned t-shirts, hats, and sweatshirts. Then along came the 1960s counter-culture, and the kids who grew up with Mickey and Davy wanted merchandise to reflect their current lifestyle.
The panel. The image that initially drove this new merchandise market was a cartoon panel entitled "Keep on Truckin'" created by cartoonist Robert Crumb. In 1968, "Keep on Truckin'" debuted in Zap No. 1, an underground comic and Crumb was surprised by the wild popularity that followed. (He believed "Keep on Truckin'" to be "the dumbest page in the whole comic.") Within months the imagery and phrase was being hawked on T-shirts, posters, patches, stickers and bathmats, none of which were authorized by Crumb. A fellow artist persuaded Crumb to get a lawyer. "I just never thought that I could ever get myself in a position where I could actually have a lawyer to protect me," he later said, "So it sounded good to me, you know. You have to have somebody in the legal business on your side."
A.A. Sales pulls a reverse Pac-Man. One of the companies he pursued was A.A. Sales. Initially the parties reached a settlement and $750 was paid to Crumb but there was confusion as to the payment and A.A. Sales continued to sell unauthorized posters, puzzles and patches. In 1973, Crumb's lawyers filed suit in federal court. The judge, Albert Charles Wollenberg, a 73-year old Eisenhower appointee, was no stranger to underground comics--he had previously ruled in the infamous Air Pirates case in which he halted Mickey Mouse's use in a risqué comic. A.A. Sales decided to dig in its heels and refused to settle. At first it argued that the cartoon did not contain sufficient originality, and alternatively that Crumb abused copyright. When those defenses didn't fly--Crumb had borrowed the phrase, but his drawing of the zoot-suited big-footed walking characters was his own--A.A. Sales trudged out a defense that was only available in the U.S. Known as "notice omission," the defense was essentially that Crumb lost his copyright ownership because he had published his work without the little "C" in the circle with the date and Crumb's name.
The problem .. ... the solution. The only problem with A.A.'s defense was that it didn't know of any omission, and had no proof that there ever was an omission. So it did what many copyright defendants did at the time--it went on a fishing expedition. Fortunately, Crumb had included the copyright notice when he published Zap No.1. He did so more out of attention to detail than for any legal reason since he thought it was "traditional." The notice had also been published in Head Comix (when the cartoon was included in a book published by Viking Press). Lacking proof, A.A. Sales continued to pursue discovery and Crumb lamented the whole process and expense:
"Morally, I feel that--I mean in 1967 when I was drawing this stuff, to me it was all a mater of morality because I just didn't develop an awareness of where this is the hard, cold facts of business life in America, the way it works, you know, like the whole principle that you can be starving in the gutter and somebody could be getting rich off your work, and not paying you a cent because you didn't put a little C with a circle next to your work is a reality of life in American which I was not that keenly aware of when I did the work. But now I am, obviously, because here we are arguing about it."
A.A. Sales discovered many copies of "Keep on Truckin'" without notice--but none were admissible because they were all unauthorized infringements. It looked like the defense would fail ... until the deposition of Robert Rita, owner of the Print Mint, a company that printed underground comics. Rita had used the "Keep on Truckin'" image on a 3 x 6 inch business card with Crumb's permission. 15,000 to 20,000 cards had been printed (although that number was later recalculated as less than 6,000 copies). Rita stated that Crumb had never required notice on the card.
I can't recall. Crumb, on the other hand stated that he didn't recall anything about the cards and didn't remember seeing them. Under the 1909 Copyright Act, which was in effect at the time of the case, any authorized publication of a work without notice resulted in a loss of copyright--a fate that had previously befallen a wide variety of works ranging from primitive computer games to the Danish Troll dolls. (The principle of notice omission favors big business over artists since artists are more likely to forget about notice and big businesses are more likely to discover those failures.)
The public domain trapdoor. Although every other nation had abandoned the defense, the U.S. refused to change its approach, a fact that kept it from becoming a member of important international treaties such as the Berne Convention. In 1975, using the Print Mint business cards as evidence, Judge Wollenberg granted A.A. Sales' motion for summary judgment. "Keep on Truckin'" then fell into the public domain. In other words, Crumb's image that had spawned the first adult merchandising boon was now free for anyone to commercialize. Fortunately, in 1977 the Ninth Circuit determined there was an issue of fact as to whether Crumb had authorized publication of the cards. The summary judgment was reversed and "Keep on Truckin'" was pulled back from the public domain.
All's well that ends ... The case with A.A. Sales was settled prior to trial and Crumb now retains copyright ownership of the work. The case was a bitter experience for Crumb who later documented his feelings about Judge Wollenberg in one of his comics. And in his comic book, Home Grown Funnies, Crumb also reflected his bitterness (as well as creating the precursor to today's Creative Commons copyright license) when he inserted the following notice: "All material herein may be reprinted for free by any underground publication or other small enterprise. All fat capitalists who reprint without permission will be sued for breech [sic] of copyright! Nyahh."
The end of an era. The Copyright Act of 1976 (enacted in 1978) attempted to correct the problems experienced by Crumb with a more forgiving notice-omission law, but Congress finally threw in the towel with a law effective March 1, 1989 that ended penalties for notice omission. Works published after that date no longer require notice and the failure to include notice will never result in loss of copyright ownership.