The Birth of Cartoon Character - Insights from the U.S. Case Law Database (2/8)
There Was No Concept of "Characters" as We Know Them Today
It has long been established that the Yellow Kid series (serialized from 1896 to 1898), which brightened the Sunday editions of New York newspapers, marks the origin of what we now refer to as the "comic strip"【1】. However, an analysis of legal precedents reveals that during this period in the United States, the concept of what we now call a "character" was not only underdeveloped but lacked even a defined outline (this will be explored further in the latter half of this paper).
First, let us revisit Odagiri's argument in "Kyarakuta to wa Nanika" (What Is a Character?). He suggests that advancements in printing technology in Europe, which enabled the simultaneous printing of text and illustrations, fostered greater autonomy for protagonists in fiction by stimulating the imagination and creativity of both authors and readers【2】.
Additionally, the same work recounts an anecdote in which a novel by Charles Dickens was shaped by numerous sketches of the urban poor created by a particular illustrator. Odagiri argues that this suggests the emergence of what is now known in Japan as "kyaracter shosetsu" (character-driven fiction) in Britain in the late 1830s【3】.
However, this argument contains a critical flaw. It overlooks the historical context in which the autonomy of comic protagonists—and their intellectual property status in the 20th century—was formed. Specifically, Odagiri fails to account for the fact that the legal frameworks for protecting what we now call "intellectual property" were not fully developed until the latter half of the 19th century in Europe. Meanwhile, the United States, despite its rapid population growth and industrial expansion, had maintained a certain distance from these developments. This historical context will be analyzed in detail in this paper.
The origins of the term "cartoon" will not be discussed here. Similarly, due to space constraints, we will omit the historical background of New York's extraordinary growth in newspaper media and the process by which Sunday editions increased the value of cartoons. Instead, we focus on the fact that, during this era, the entertaining content of newspapers—including cartoons—was considered disposable, much like today's news, which becomes irrelevant the following day【4】.
As a preface, we will briefly touch upon U.S. copyright law.
After declaring independence from Britain in 1776, the 13 original states gradually expanded by annexing territories held by other nations, eventually forming the United States as we know it today. Meanwhile, in Europe, legal systems were evolving under the influence of the Napoleonic Code in France, with a focus on the concept of "human rights." These systems were refined and systematized, although there were national variations.
In contrast, the United States, perhaps reflecting its ethos of independence from Europe, largely turned its back on these developments. Even after the establishment of its Constitution, the country continued to operate under provisional laws that predated independence. Patent and copyright laws remained rudimentary, with only occasional revisions, until the early 20th century. Unlike European legal systems, where copyright was inherently protected, the U.S. treated copyright the same way as patents, requiring registration with a government agency.
In practical terms, this meant that a book would not be protected by copyright unless it was registered with the Copyright Office. The same applied to cartoons; even if they were published in magazines or newspapers, they were considered merely temporary illustrations, akin to disposable flyers, unless formally registered.
It is also important to note that the profession of cartoonist had not yet been fully established during this period【5】. The artists contributing to publications like Truth, a satirical magazine that actively featured cartoons in the 1890s, were either employees of the editorial staff or regular contributors under contract. Newspapers, especially in New York City—a city renowned for its large and ever-growing urban population—employed illustrators on staff to enhance the appeal of their articles and boost sales. These illustrators also showcased their work in the Sunday editions through cartoons.
With these historical facts in mind, this paper will re-examine the early development of the concept of "character" by selecting a prominent case study and offering a perspective that challenges conventional interpretations.
In 1894, a new cartoon series titled Hogan’s Alley began appearing in every issue of the satirical magazine Truth. The series was set in a fictional town reminiscent of the Irish immigrant slums of Brooklyn【6】. The following year, the artist behind the series was hired as an illustrator by The New York World (NYW). Subsequently, new cartoons by the same artist were published in the Sunday edition of the NYW under the same title: Hogan’s Alley.
It is important to note that this is not the same as the transfer of serialized manga to another publisher, as understood in modern Japan. As suggested by the title "Hogan's Alley," the illustrator created an image of a fictional slum area—one that, although imaginary, was likely perceived as a continuous and real place by readers of the time.
Furthermore, the NYW Sunday edition introduced another interesting innovation: occasionally, the children depicted were given names. For instance, the girl shown here is named "Liz," and some of her friends were also consistently identified【7】. While it's unclear how much of this naming convention was understood or shared by readers at the time, it is evident that the illustrator began assigning identities to some of the slum's inhabitants, not just to the place itself.
Eventually, one of these characters began to receive fan letters—not "Liz," but rather a nearby figure: a character who was neither white nor black, but East Asian—specifically, a caricature of a Chinese man, depicted in the mischievous form of a child【8】.
The origins of this character can already be traced back to the "Truth" magazine-era "Hogan's Alley," where the figure was often depicted ambiguously, sometimes portrayed as triplets or brothers.
Why did readers eventually recognize this figure as an individual identity? Most likely, it was because his yellow overalls were adorned with a handprint. The mischievous nature of the slum children often led to fights, and the handprints on their clothes, stained with oil from these scuffles, became a kind of signature. Over time, readers came to see the handprint on the yellow overalls as evidence that this was the same individual.
At the time, the Chinese population in New York was a small minority, making up only about 0.1% of the total population. This was due to the Chinese Exclusion Act of 1882, which banned Chinese laborer immigration for ten years and was extended in 1892. Most Chinese immigrants were adult males working as laborers, and children were rarely seen in the community【9】.
There are interesting aspects to the exclusion of Chinese people in America, despite the nation being built by immigrants. However, since these points are not central to the main topic of this paper, I will not discuss them here. It is also unclear whether the illustrator of "Hogan's Alley" was aware of this political issue. The inclusion of a Chinese child, a minority even among New York’s poor Irish, in the slum setting of "Alley" seems more like a typical circus sideshow character, similar to dwarf clowns. It was likely this aspect of the character's clownish nature that led readers to identify it as such, a characterization the illustrator seems to have reinforced.
While illustrations in fiction were usually secondary to the written narrative, this depiction of a clown child, with its fantasy element of a Chinese child, became detached from the story and evolved into something akin to an internet meme.
Another shift in the narrative occurred when the illustrator was invited by the New York Journal (NYJ), prompting him to leave NYW. Amid fierce competition for circulation, the popularity of Sunday cartoons led to the poaching of illustrators. After losing the artist, NYW had one of its other staff artists continue the work. In other words, New York newspaper consumers of the time saw the same figures appearing in two different newspapers, drawn by two illustrators, in the two Sunday editions each week.
That situation may be difficult for us to grasp in the modern era. In fact, when explaining it to contemporary Japanese readers interested in the early history of American comic strips, it helps to reframe it like this:
In the past, Japanese novelists were not freelancers but were employed as staff writers by newspapers. While they didn’t have to report to the office, they serialized their novels exclusively for the paper. The copyrights to their works belonged to the authors, not the newspapers. When a serialized novel was later published as a book, the newspaper retained no rights to it. This arrangement was governed by long-term employment contracts.
The situation with "Hogan’s Alley" can be imagined as a hypothetical case where a popular novelist at a Japanese newspaper of that time is offered better terms by another paper, switches employers, and continues the serialization of the same story for the new paper. The original newspaper, left behind, would then assign another writer to take over and continue the serialization of the same story.
To clarify and avoid misunderstandings, it should be noted that no such cases had been confirmed among Japanese newspapers at that time. (The Japanese people, while adopting Western practices such as strict contracts, placed great emphasis on the values of honor and duty.)【10】
However, hypothetically, if such a case had occurred in the Japanese newspaper industry of the period, and the original author had sought an injunction to halt serialization by another author and the newspaper they belonged to, it would have been nearly impossible to address under the legal framework and employment contract provisions of that time. While Japan had implemented intellectual property laws comparable to European standards by the end of the 19th century, even Europe had not yet clearly codified laws addressing what is now referred to as "unfair competition"【11】.
In the United States, the legal system of the time was not only more rudimentary than those in Europe or Japan but also relied on state courts for jurisdiction in certain areas rather than federal courts. As a result, determinations of what constituted unfair competition depended on state-level precedent, leading to significant variation across states.
Some might ask, "Why not directly claim that it constitutes copyright infringement rather than debating whether it qualifies as unfair competition?" However, even in Japan—where copyright laws were more developed than in the United States—this argument would likely have been misunderstood in court. Could one assert that copyright for yet-to-be-written portions of a serialized novel had already been established in advance【12】? Moreover, under U.S. domestic law, copyright could only be recognized for works formally filed and registered. If even previously published material required registration for protection, it would have been highly unlikely for unwritten or undrawn portions of the serialized work to gain legal recognition.
In short, when the illustrator of "Hogan’s Alley" moved to a new employer, he couldn't prevent other staff illustrators from continuing the "Alley" series. Likewise, his former employer couldn’t stop him from continuing the cartoon at his new workplace.
Of course, the ideal approach would have been to carefully outline detailed terms before the cartoon series began (or when the employment started), covering situations where the author resigns or moves to another company. However, this is a suggestion made in hindsight, based on a modern perspective, so it will not be further discussed here.
Additionally, in today’s context, one could potentially pressure the opposing party and gain an advantage in court simply by invoking unfair competition. Unfortunately, the legal concept of unfair competition was not even recognized by name in the Western world (including Japan in legal discussions) at the time. Indeed, both NYW and NYJ appear to have had a simple view: they were satisfied as long as their subscriber base grew【13】.
The illustrator, however, seemed to see things differently. In one installment, just before switching employers, the replacement illustrator is depicted in a malicious way in the upper right corner. Furthermore, in the successor's first installment, the Chinese boy warns readers to beware of imposters【14】, suggesting a sense of mutual animosity between the parties involved.
From the perspective of modern legal frameworks, one might assume that the original illustrator could have asserted their case publicly based on a violation of "moral rights"—the right to protect authors from mental harm caused by alterations to their works[15]. However, at the time, this right (and related rights) were not codified in American law. In fact, it was not until 1904 that a court ruling granted authors the right to prevent alterations to their artwork[16]. Thus, it is clear that protections for moral rights and injunctions against unfair competition were far from the contemporary standards during the 19th century.
The well-known anecdote about the illustrator inquiring with the copyright office about whether the Chinese boy image could be registered as a "work" when transferring from NYW to NYJ[17] likely stems from this context.
This story has often been cited in comic strip research, including by scholars in Japan, as a significant moment in the early theoretical exploration of the protection of cartoon characters.
However, given the underdeveloped state of American legal frameworks at the time, the dual system of federal and state courts (which continues today), the lack of sufficient legal precedents, the evolving international discourse on intellectual property, and the fact that such concerns had not yet emerged within the New York newspaper industry (a point that will be explored further), it seems that the illustrator simply devised a tactic to prevent others from publishing new "Alley" works. In other words, the illustrator thought it worthwhile to inquire with the copyright office, received a rejection, and then backed down[18].
It is worth noting that, at the time, ownership of the title of serialized works was considered more important (this will be discussed later). In fact, after transferring to NYJ, the illustrator continued to feature the Chinese boy and his companions, but under a different title. The paper also consistently published new text-based works by another author alongside the cartoon installment, as though they were part of the same series. NYJ might have believed that even if NYW had sought an injunction, this careful approach would have allowed them to counter by questioning the legal grounds for such a request.
We should briefly touch on the international treaties related to intellectual property in the 19th century [19]. In 1883, the Paris Convention for the Protection of Industrial Property [20], a treaty concerning patents and related matters, was ratified by 11 countries, with the United States joining a few years later. However, the Berne Convention for the Protection of Literary and Artistic Works, created in 1886, a treaty concerning copyright, was not ratified by the United States until more than a century later.
Incidentally, Japan ratified both treaties by 1899, within the 19th century, and had already been working on the development of domestic laws to support these treaties. From the perspective of European nations at the time, the United States (along with its surrounding South American countries) was seen as lagging behind in intellectual property law. However, it was also a country of great imbalance, leading the world in terms of resources, labor, and industrial technological prowess.
The competitive publication of colorful Sunday editions by New York's major newspapers was one of the byproducts of this combination of factors. As the latest technology in high-speed, high-volume color printing met the growing market of newspaper readers, cartoons evolved independently as one of the "art forms of the age of mechanical reproduction," a term later coined by German thinker Walter Benjamin. At the same time, a legal theory unique to the United States (or perhaps specifically to the New York newspaper industry) began to emerge, sparked by the controversy over the transfer of cartoonists.
Now, as we enter the 2020s and AI development and proliferation in the United States advance at a dramatic pace, with countries around the world scrambling to catch up with their legal frameworks, the intellectual property-related contracts and practices in New York from that time seem almost like a distant precursor to the current situation. Reflecting on 1890s American civilization—such as the expansion of the city's electric power supply system by the "Inventor King" Edison—one can imagine how it gently transcended the boundaries of 19th-century European civilization, giving rise to new forms. This period also foreshadowed the development of "characters" (or fictional characters), which would later flourish in the 20th century [21].
To be continued in part 3
[1] While I am aware that several theories suggest earlier instances, I believe that each theory warrants thorough re-examination, regardless of which one is accepted. The reasons for this will be discussed in detail throughout this paper.
[2] Same source, p. 114.
[3] Same source, pp. 111-112.
[4] The official website of the United States Copyright Office provides access to a list of registered works after 1891 (https://onlinebooks.library.upenn.edu/cce/). I encourage you to manually verify how many cartoons were registered in the 1890s. This manual verification is necessary because, as of the end of August 2024, database searches for registration lists from this period up to 1978 are currently unavailable.
[5] See note 47.
[6] The Brooklyn Bridge, which connects Brooklyn and Manhattan in New York, opened in 1883. Fifteen years later, in 1898, Brooklyn was incorporated into New York City.
[7] The names "Chimmey M'manus" and "Elizabeth Clinchy" appear beneath the drawing. The boy on the right, presumably Chimmey, can be seen addressing the girl as "Liz."
[8] "My correspondence is getting so darn big that I can't open all my mail. Won't some pretty typewriter gal donate her services until I can answer a few of my letters?"
[9] This is an approximation based on the 1890 population census data provided by the United States Census Bureau (https://www2.census.gov/library/publications/decennial/1890/volume-1/1890a_v1-16.pdf). The book "New York" (Shunsuke Kamei, Iwanami Shoten, March 2002) also mentions that the Chinatown population in New York did not exceed 4,000 until World War II. Incidentally, the Chinese Exclusion Act was repealed in December 1943 during the war.
[10] In Japan, it was common practice for newspapers of the time to "employ" authors as special employees.
[11] In 1928, the League of Nations held the International Commercial Conference, where discussions were held on international standards for unfair competition and trademark protection in commerce. While this did not lead to a specific treaty, the Paris Convention for the Protection of Industrial Property, revised three years earlier, contained the seeds of these ideas, though it did not directly address unfair competition.
[12] Copyright is generally considered to arise naturally when a work is created. However, some countries, especially the United States, held that copyright is established upon application and registration.
[13] The owners of both newspapers were William Randolph Hearst and Joseph Pulitzer, two influential newspaper tycoons in New York, who competed in circulation through their multiple newspapers.
[14] "THEY'RE IMITATIN' ME ALL AROUND TOWN! I'M THE SUNDAY WORLD'S KID AND HAVE BEEN FOR A YEAR & A HALF! ALL OTHERS ARE FAKES."
[15] The definition of a violation of an author's moral rights vary depending on the laws of each country.
[16] WERCKMEISTER v. AMERICAN LITHOGRAPHIC CO. et al. https://case-law.vlex.com/vid/werckmeister-v-american-lithographic-889544616
[17] The inquiry regarding registration was phrased as follows: "I would like to register copyright for The Yellow Dugan Kid. This is not a specific commercial product but a character appearing in my weekly cartoons published in the Sunday edition of the World newspaper. I have enclosed one of the cartoons. Is it possible to register copyright for this character? The character is drawn in different poses each week, but always wears yellow clothes and has large ears, two teeth, and a bald head—distinctive features that make it unique." https://en.wikipedia.org/wiki/The_Yellow_Kid#/media/File:Claim_for_copyright_on_The_Yellow_Dugan_Kid.jpg
[18] The April 15, 1897 issue of the NYJ cites a letter from the U.S. Treasury Department regarding whether The Yellow Kid could be recognized as a copyrighted work. The article notes that, following a suggestion from the Librarian of Congress, the department stated that while the work's title, "The Yellow Kid," had been registered for copyright, the character itself could not be registered due to incomplete application documents. However, it is important to point out that, since the title was treated as a trademark, it could not be eligible for copyright registration. This reveals that, at the time, government agencies lacked clear policies or concepts concerning comic strips and cartoon characters.
[19] The term "intellectual property" was coined in the 1960s. However, for clarity, this paper uses the term to refer to the legal frameworks in place before that time as well.
[20] https://www.wipo.int/wipolex/en/text/287780
[21] The case of actor Charlie Chaplin playing the character "Chaplin" in multiple films is an example of a broader issue that should be explored in a future discussion. See also note 71.