It was the first publication of the cartoon character called "Mutt," and the plaintiff was the sole originator thereof.

"(4) Cartoons in the form of 'comic strips,' containing the character 'Mutt' and drawn by Harry C. Fisher, continued to be published in the San Francisco Chronicle daily, until and including December 10, 1907.”

Each of such cartoons so drawn and published contained the word "Mutt" as a designation or name of the said cartoon character.

"(8) On December 11, 1907, and on December 12, 1907 (that is to say, on each of said dates), a cartoon in the form of a 'comic strip,' drawn by Harry C. Fisher, was published in the San Francisco Examiner, a daily newspaper, and each contained the same cartoon character 'Mutt' as had been previously published in the San Francisco Chronicle and contained the word 'Mutt' as a name for the said cartoon character."

The said cartoon so published on December 10, 1907, and the cartoons so published on December 11 and 12, 1907, were each duly copyrighted by the plaintiff in his own name, and the plaintiff has never sold or assigned said copyrights or either of them. That the said cartoons of December 11 and 12, 1907, were copyrighted with the knowledge and consent of the publishers of the San Francisco Examiner.

"(12) Harry C. Fisher continued to publish his cartoons in the form of 'comic strips' in the San Francisco Examiner from December 11, 1907, to and including May 12, 1909, between which dates the said 'comic strips' appeared practically daily.

"(13) The first appearance of the cartoon character known as 'Jeff' was in the 'comic strip' drawn by Harry C. Fisher and published in the San Francisco Examiner on March 27, 1908, in which the cartoon character subsequently known as 'Jeff' appears in the said 'comic

strip,' wherein it is referred to as "Jeffries.'

"(14) The said cartoon character referred to as 'Jeffries' appears again in the 'comic strips' drawn by Harry C. Fisher and published in the San Francisco Examiner on March 29, 1908.

"(15) On April 1, 1908, the cartoon character previously referred to as 'Jeffries' was also referred to, in the 'comic strip' of that date drawn by Harry C. Fisher, as 'Jeff.'

"(16) Thereafter, that is to say, from April 1, 1908, until May 12, 1909, the cartoon character named and referred to as 'Jeff' frequently appears in the 'comic strips' drawn by Harry C. Fisher and published in the San Francisco Examiner."

The first occasion when the word "Jeff" appeared in the title to a "comic strip" was in the San Francisco Examiner on April 4, 1908.

"(18) From March 20, 1909, to May 12, 1909, the 'comic strips' drawn by Harry C. Fisher and published in the San Francisco Examiner frequently bore both the name 'Mutt' and the name 'Jeff' in the titles thereof. Examples of such titles are the following: March 20, 1909, Examiner: 'Mutt Gathers $511 and Takes Jeff to Dinner. By Bud Fisher.' March 27, 1909: 'Mutt Gives Jeff the Hook and is Back on the Block Himself. By Bud Fisher.' April 3, 1909: 'Mutt's Book Blows $40 and Jeff Can't Get over the Shock. By Bud Fisher.'

"(19) Cartoons in the form of 'comic strips' in which the word Mutt' and the word 'Jeff' both appeared in the title and which consist entirely of the cartoon characters 'Mutt' and 'Jeff,' appeared on a number of dates in the San Francisco Examiner prior to May 12, 1909, on which date the last cartoon was published in the San Francisco Examiner before Harry C. Fisher came to New York and began drawing his 'comic strips' in New York for publication in the New York American.

"(20) The said cartoons published by Harry C. Fisher in the San

Francisco Examiner before he came to New York in May, 1909, had become and were at that time known to the public as 'Mutt and Jeff.'

"(21) The New York American is a daily newspaper published in the city of New York by the Star Company, the defendant in this action.

"(22) Harry C. Fisher came to New York between May 12, and May 18, 1909, and on May 18, 1909, there was published in the New York American a cartoon in the form of a comic strip' drawn by Harry C. Fisher, consisting chiefly of the character known as 'Mutt,' and containing the word 'Mutt' as the name of said cartoon character.

"(23) From May 18, 1909, until January 29, 1915, cartoons in the form of 'comic strips' drawn by Harry C. Fisher were published in the New York American almost daily.

"(24) The said 'comic strips' drawn by Harry C. Fisher and published in the American between said dates sometimes depicted the character known as 'Mutt' alone; sometimes depicted the character known as 'Jeff' alone; often depicted the characters 'Mutt' and 'Jeff' together, without any other characters appearing in the 'comic strips;' and sometimes depicted other characters in connection with the characters of 'Mutt' and 'Jeff,' or both.

"(25) The 'comic strips' drawn by Harry C. Fisher and published in the New York American beginning May 18, 1909, possessed the same general characteristics and appearance, and consisted of the same general subject-matter, as did the cartoons drawn by Harry C. Fisher and published in the San Francisco Chronicle and Examiner prior to May 12, 1909.

"(26) On February 24, 1909, the Examiner Printing Company, publisher of the San Francisco Examiner, made a contract with Harry C. Fisher, whereby Harry C. Fisher agreed for the period of three years. to furnish his said cartoons in the

form of 'comic strips' exclusively to the San Francisco Examiner.

"(27) Harry C. Fisher received the compensation named in the said contract, and furnished his 'comic strips' to the San Francisco Examiner pursuant thereto from the date thereof until on or about May 12, 1909, when he came to New York and began to furnish his 'comic strips' to the New York American, and to receive the compensation. named in the contract of February 24, 1909, from the Star Company, which continued until August 8, 1910.

"(28) On August 8, 1910, the Star Company and Harry C. Fisher made and entered into the agreement in writing which has been marked 'plaintiff's exhibit 1' and at that time the president of the Star Company undertook to have the contract between the Examiner Printing Company and Harry C. Fisher of February 24, 1909, canceled, and thereafter the said contract of February 24, 1909, was, by mutual consent of the parties thereto, considered to be abandoned.

"(29) On July 15, 1910, Harry C. Fisher made a contract with Mr. Charles T. McCotter, doing business under the name of the Ball Publishing Company, for the publication in book form of certain of the cartoons previously drawn by Harry C. Fisher and published in the New York American; and the said contract was made by and with the consent of the Star Company.

"(30) On September 22, 1910, Harry C. Fisher published in book form about fifty of his cartoons called 'comic strips,' selected from those previously drawn by him and published in the New York American; and the said book of cartoons was published under the title of "The Mutt and Jeff Cartoons. Bud Fisher.'

By

"(31) The said book of cartoons was copyrighted under the title "The Mutt and Jeff Cartoons. By Bud Fisher,' by Harry C. Fisher in his own name on September 22, 1910.

"(32) The said book of cartoons.

was published as aforesaid under the title 'Mutt and Jeff Cartoons. By Bud Fisher,' with the knowledge and consent of the Star Company."

On November 1, 1911, a second, and on November 25, 1912, a third book of said cartoons, was published by respondent under a similar title and each was similarly copyrighted by respondent with the knowledge and consent of the appellant.

"(35) Before Harry C. Fisher came to New York in May, 1909, his cartoons of the characters 'Mutt' and 'Jeff' were generally known to the public and the newspapers as the Mutt and Jeff' cartoons, and Harry C. Fisher was generally known as the author or artist of the 'Mutt and Jeff' cartoons, and when he came to New York in May, 1909, Harry C. Fisher was introduced by an employee of the Star Company to the managing editor of the New York American with the words, 'I want to introduce you to Mutt and Jeff.'

"(36) The first cartoon on which the words 'Mutt and Jeff' were published as a title to cartoons or 'comic strips' was on Steptember 22, 1910, when the first book of 'Mutt and Jeff' cartoons was published and copyrighted by Harry C. Fisher as aforesaid."

Prior to the trial of the action between 300,000 and 400,000 copies of said books were sold.

"(38) From May 18, 1909, to December 11, 1914, the cartoons drawn by Harry C. Fisher were published by the Star Company in its newspaper, the New York American, under the titles or captions furnished with the cartoons by Harry C. Fisher.

"(39) The said titles or captions. furnished by Harry C. Fisher with his cartoons or comic strips,' and published from day to day in the New York American between May 18, 1909, and December 11, 1914, changed from day to day and consisted of a sentence in which sometimes neither the word 'Mutt' nor the word 'Jeff' would appear, but in which usually the word 'Mutt' or the

word 'Jeff' appeared, and in which frequently the word 'Mutt' and the word 'Jeff' both appeared. But on no occasion between May 18, 1909, and December 11, 1914, did the Star Company publish one of Harry C. Fisher's cartoons or 'comic strips' under the title 'Mutt and Jeff.'

"(40) On December 7, 1914, Harry C. Fisher made a contract with the Wheeler Syndicate, Incorporated, whereby Harry C. Fisher agreed to furnish his cartoons or 'comic strips' exclusively to the Wheeler Syndicate, Incorporated, as his agent for newspaper publication for a term of three years, beginning on the expiration of Harry C. Fisher's contract with the Star Company; that is to say, on August 8, 1915.

"(42) On December 11, 1914, the Star Company, without the knowledge or consent of Harry C. Fisher, added to the title or caption of the cartoon furnished to the Star Company by Harry C. Fisher for publication in the New York American on that date, the words 'Mutt and Jeff,' so that the title of the said cartoon which was furnished to the New York American was in the following words, to wit: "The Little Fellow Knows Some Knows Some Law and Proves It. By Bud Fisher,' was changed to read as it was published in the New York American on that date: 'Mutt and Jeff. The Little Fellow Knows Some Law and Proves It. By Bud Fisher.' Against this change in his title Harry C. Fisher immediately protested. The Star Company did not change the title of the said cartoon of December 11, 1914, when it furnished the said cartoon to newspapers for publication outside of the city of New York and the said cartoon of December 11, 1914, was published outside the city of New York under the title furnished with it by Harry C. Fisher.

"(43) After December 11, 1914, the Star Company published the cartoons drawn by Harry C. Fisher under the titles furnished by Harry C. Fisher, no one of which con

(231 N. Y. 414,

tained the words 'Mutt and Jeff,' continuously until January 19, 1915, on which date the Star Company, without the knowledge or consent of Harry C. Fisher, removed the title furnished by Harry C. Fisher with his cartoon to be published on that date, and substituted in place thereof the words 'Mutt and Jeff.' After January 19, 1915, and to and including January 29, 1915, the Star Company, without the consent of Harry C. Fisher and over his protest, removed the titles furnished by Harry C. Fisher with his cartoons, and placed on each of them published between the said dates the title 'Mutt and Jeff. By Bud Fisher,' after which Harry C. Fisher refused to furnish any further cartoons to the Star Company, and none was published by it after January 29, 1915.

"(44) Beginning with November 15, 1907, and continuing to the present time, Harry C. Fisher has exclusively drawn the cartoon character which he has named 'Mutt,' and which has become generally known to newspaper publishers and to the public as the cartoon character 'Mutt,' and is generally recognized as such by the public.

"(45) Beginning with March 17, 1908, and continuing to the present time, Harry C. Fisher has exclusively drawn the cartoon character which he has named 'Jeff,' and which has become generally known to newspaper publishers and to the public

as the cartoon character 'Jeff,' and is generally recognized as such by the public.

"(46) Harry C. Fisher drew and published cartoons in the form of comic strips' containing both the character 'Mutt' and the character 'Jeff,' and in the title thereof both the name 'Mutt' and the name 'Jeff' before any of his cartoons were published in the New York American, and before he made any contract to furnish cartoons to the Star Company.

"(47) Neither the Star Company nor any of its officers, agents, or employees ever published any car

132 N. E. 133.)

toon characters similar to the cartoon character drawn by Harry C. Fisher and named by him 'Mutt,' or the cartoon character drawn by Harry C. Fisher and named by him 'Jeff,' or used the name 'Mutt' or the name 'Jeff' as a title to a cartoon or to a cartoon character, before Mr. Fisher came to New York in May, 1909, and began furnishing cartoons to the New York Ameri

can.

"(48) Harry C. Fisher did no work and furnished no material to the Star Company other than to draw cartoons in the form of 'comic strips,' consisting chiefly of the cartoon character 'Mutt' and the cartoon character 'Jeff.' Harry C. Fisher was not a general employee of the Star Company. After August 8, 1915, Harry C. Fisher was under no obligation to furnish any cartoons to the Star Company.

"(49) Harry C. Fisher is now engaged through the Wheeler Syndicate, Incorporated, as his selling agent, in selling to newspapers throughout the United States and Canada the right to publish his said cartoons consisting of the cartoon characters 'Mutt' and 'Jeff' in the form of 'comic strips,' and the same are being published from day to day in such newspapers.

"(50) The said cartoons so being furnished by Harry C. Fisher to newspapers throughout the United States and Canada, and being published as aforesaid, consist of representations of the said cartoon characters 'Mutt' and 'Jeff,' and are generally of the same kind and character as those previously drawn by Harry C. Fisher, and are generally known to such newspapers and to the public at large as the 'Mutt' and 'Jeff' cartoons, and the same are now being published under the name of the 'Mutt' and 'Jeff' cartoons.

"(51) The defendant, Star Com- . pany, among other things, is also engaged in a similar business of furnishing cartoons to newspapers through the United States and Canada for daily publication.