DC VS VICTOR FOX: The Testimony of Harry Donenfeld

This is the sixth and final installment of testimony from Detective Comics, Inc. vs. Bruns (Fox) Publications. As I've done previously, I’ll present the scanned transcript pages and leave my comments to the end.

Finally, it came down to the testimony of Harry Donenfeld. His presence loomed over the entire proceedings as every one of the case's participants knew him and most had reason to fear him. To even casual observers, Donenfeld's long, disreputable past was well-known:

"Last week the new owner and the future of the Police Gazette were revealed. The owner is Merwil Publishing Co. consisting of Irving & Harry Donenfeld and Mrs. Merle Williams Hersey. Merwil Publishing Co. issues five of the smuttiest magazines on the newsstands..." [TIME MAGAZINE, "Barber's Bible", July 31, 1933]

Victor Fox makes a brief reappearance on the stand after Donenfeld in rebuttal to conclude the testimony. I have included that here as well.

-- Harry Donenfeld, plaintiff witness herein referred to as The Witness
-- Victor S. Fox, defense witness herein referred to as The Witness
-- Asher Blum & Raphael Koenig, attorneys for defendant Brun Publications (Fox)
-- Samuel Fried, attorney for co-defendants Kable News Co. and Interborough News Co.
-- Horace Manges, attorney for the plaintiff Detective Comics, Inc.
-- Judge John Woolsey, herein referred to as The Court
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TESTIMONY OF HARRY DONENFELD


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COMMENTS

Although brief, Donenfeld's testimony was--like the man himself--direct and uncompromising:

Manges: Mr. Donenfeld, you are president of the plaintiff corporation?

Donenfeld: I am, sir.

Manges: Did Mr. Fox ever submit to you a dummy for a magazine Kid Comics?

Donenfeld: No, sir.

Manges: Did Mr. Fox ever submit to you a any dummy with the "Wonderman" character on it?

Donenfeld: No, sir.

While much of his testimony is devoted to detailing--and apparently proving with canceled checks--that he was not in New York City at the time Fox claimed to have met with him to propose KID COMICS, it is during cross-examination on another matter that Donenfeld shows some anger:

Blim: Haven't you pleaded guilty in the Federal Court recently for sending obscene matter through the mails?

Donenfeld: No, sir, I was never involved in any Federal Court action.

Blum: I would like to have you search your memory because I want the correct answer, if you remember it. Haven't you pleaded guilty in the Federal Court recently?

Donenfeld: Do you think I'm going to perjure myself?

Blum: I don't know.

Donenfeld: I have made a definite statement that I was never indicted, never had any business with any Federal authorities or any Federal courts; never been indicted and never pleaded. Is that clear?

Blum: That is clear.

Donenfeld: O.K., sir.

The simmering animosity between Donenfeld and Fox is laid bare when the latter takes the stand briefly in an attempt to rebut Donenfeld's words:

Manges: Have you any proof at all besides your word that you saw Mr. Donenfeld in New York between January 10th and January 20th, that those dates are correct, in 1938?

Fox: I was unprepared for the question, but if I have the time--I keep memorandums of all my conversations with Donenfeld as I found that they were not always according to Hoyle.

With Fox's testimony, the trial ends. We have the advantage afforded by time to know the outcome of the case in Detective Comics favor. Despite several appeals, the decision stands.

The ironies surrounding this case abound. The chilling effect DC hoped the decision would have on any other potential imitators didn't materialize. Even while the case was being heard, new super-powered characters were hitting the newsstands. By the time all appeals had been exhausted, the floodgates had been irrevocably opened. Even Victor Fox never visibly hesitated, as his comics featured one super-hero after another.

Within a decade of this 1939 case, the alliances involved had drastically changed.

Although Victor Fox had stiffed Eisner and Iger the $3,000 he owed them at the time of this case, they continued doing business with him. In fact, Iger, long after Eisner had split from the partnership, would be producing material for Fox's comics virtually until he stopped publishing in the 1950s. The aforementioned Eisner-Iger split left the former partners at odds, particularly evident in Iger's bitter memories later in his life.

Jerry Siegel, already angry over DC's shady accounting practices denying him and Shuster any profits from their creation, would--with Shuster--eventually sue the corporation. The first suit, initiated in 1947, ended not only with DC prevailing, but the ostracizing of both creators from DC for years.

By 1944, M.C Gaines ended his relationship with DC with the sale of All-American to Donenfeld's emerging National Comics. This too was an acrimonious split that had been exacerbated by tensions between him and his partner, Jack Liebowitz. Even Gaines' editor and protégé, Sheldon Mayer, switched his allegiance by staying with DC when Gaines went on to form Educational Comics.
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FINAL THOUGHTS

Having the opportunity to present this extraordinary historical document has been a true privilege. I don't question whether it was luck or something I did that prompted the finder of this transcript to contact me and then to allow me to publish it online, I'm just thankful that he did.

And to answer all those who wondered where this document had been found...

it is available to us all, where it has always been, in the National Archives.

--Ken Quattro

DC VS VICTOR FOX: The Testimony of Jack Liebowitz

This is the third installment of testimony from Detective Comics, Inc. vs. Bruns (Fox) Publications. As in the two previous, I’ll present the scanned transcript pages and leave my comments to the end.

Fittingly, Jack Liebowitz leads off for the plaintiffs. The former accountant had worked his way up through Harry Donenfeld’s organization, from business manager, to secretary-treasurer, to Max Gaines partner in the Donenfeld-funded All-American Comics venture. He was also chief guardian of the Superman franchise:

“He (Liebowitz) was ferocious within the industry, though. As Superman imitations poured from cheap printing presses in 1939 and 1940, it became almost habitual for the company to toss around lawsuits and threatening letters.” [Gerard Jones, MEN OF TOMORROW, pg. 165]

-- Jacob S. Liebowitz, plaintiff witness herein referred to as The Witness
-- Asher Blum & Raphael Koenig, attorneys for defendant Brun Publications (Fox)
-- Samuel Fried, attorney for co-defendants Kable News Co. and Interborough News Co.
-- Horace Manges, attorney for the plaintiff Detective Comics, Inc.
-- Judge John Woolsey, herein referred to as The Court
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TESTIMONY OF JACK LIEBOWITZ


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COMMENTS

Liebowitz's testimony is remarkable.

Not just because it establishes Fox's opportunity and means of acquiring the sales figures of--and consequently, the motivation to copy--ACTION COMICS, but it peels back the layers of incestuous relationships between the participants. From a historical perspective, Liebowitz's words may be more revealing, if not as shocking, as Eisner's.

To begin with, he puts to rest this apocryphal tale:

"…Harry Donenfeld's accountant, Victor Fox came in to work at 10:00 AM, saw the sales figures for Action Comics #1, he quit his job at 11:00 AM, spent the noon hour finding some office space to rent, and by 2 PM he was interviewing people to do superhero comics for him." [Jamie Coville, "Siegel, Shuster and Superman"]

The truth is more involved and more intriguing. After establishing the close proximity of Bruns to DC (both were in the same building, two floors apart), the plaintiff's attorney reveals a deeper relationship:

Manges: Is Mr. Donenfeld the president of your company?

Liebowitz: He is.

Manges: And did Mr. Donenfeld at one time have a 50 percent interest in the Bruns Publications?

Liebowitz: Yes.

Wheels within wheels. Not only was Donenfeld owner of Detective Comics and distributor, Independent News, but was also Fox's one-time partner in Bruns. Meanwhile Liebowitz, secretary-treasurer of DC, served in a similar capacity for Independent News, of which, Fox was a customer.

It was as a client of that distributor that Fox had access to the sales figures of ACTION COMICS. It seems that he would make a daily trip to the offices of Independent News to check the sales of his own WORLD ASTROLOGY MAGAZINE. While flipping through the unsorted "pick-up" cards, Fox had the opportunity to see the astounding sell-through rate of ACTION compared to the meager sales of WORLD ASTROLOGY.

Liebowitz also makes reference to a comic book proposed to him by Fox in February, 1939:

Manges: Will you tell his Honor what was said by Mr. Fox and what was said by you, to the best of your recollection?

Liebowitz: Well, he was up to see me at one time at the office, I think it was around five o'clock. A part of the conversation was to inform me he was going to publish a comic magazine and that the issue was being prepared in about two weeks.

Was this WONDER COMICS or the KID COMICS mentioned by Fox? If so, their stories, not surprisingly, vary wildly. Fox claimed he had this conversation with Donenfeld and a full year earlier, in January, 1938. As is frequently the case, timing is everything, and proof of it becomes central to this case.

Next up on the stand: Jerry Siegel.

DC VS VICTOR FOX: The Testimony of Iger & Fox

This is the second installment of testimony from the transcript of the legendary lawsuit pitting plaintiff Detective Comics, Inc. against upstart publisher Victor Fox (Bruns Publications) and his distributors for copyright infringement of DC's franchise character, Superman.

I'm going to step back and let Jerry Iger and Victor Fox speak for themselves, but I quickly want to say "Thank you" to all the folks who have contacted me over the past few days regarding my publication of this historic document. Once again, the thanks should go to the actual finder of the transcript; I only provide the forum for its viewing.

-- Samuel M. Iger & Victor Fox, defense witnesses herein referred to as The Witness
-- Asher Blum & Raphael Koenig, attorneys for defendant Brun Publications (Fox)
-- Samuel Fried, attorney for co-defendants Kable News Co. and Interborough News Co.
-- Horace Manges, attorney for the plaintiff Detective Comics, Inc.
-- Judge John Woolsey, herein referred to as The Court

[note: the "Mr. Stolz" referred to in the first portion of this testimony was the vice-president of Interborough News. The court was trying to subpoena Stolz to testify to his sending of a letter to various people connected with distribution for his company.]

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TESTIMONY OF JERRY IGER & VICTOR FOX


Iger, pg. 1

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COMMENTS

After wading through some preliminary side-talk, it doesn’t take long to realize that Jerry Iger’s testimony was crafted to bolster what Eisner had said earlier. As Wonder Man’s creator (à la Victor Fox), Eisner was tapped to carry the weight of the defense’s case.

The direct questioning of Iger hoped to establish the defense’s contention that Eisner had created “The Wonderman” in January 1938 and had presented his rough sketch to Fox at that time. This was crucial to their case. The implication that The Phantom was a common source for both Superman and Wonder Man was offered and just as quickly dismissed by Judge Woolsey, who seemed to be losing his patience.

The plaintiff’s attorney, trying to find an exploitable fracture between Eisner and Iger’s testimonies, elicited this humorously coy response:

Manges: When did you first read the script “Superman” in Action Comics?

Iger: After the question of whether we had copied the character in Action Comics called--what do you call him? I don’t recall. As a matter of fact, I very seldom read--I don't read all the comic books. We do read the comic books that we supply.

Iger got off relatively easy as opposed to the grilling that Eisner received. Things got a bit more interesting, though, when Victor Fox took the stand.

Almost overlooked in light of the shock of Eisner’s earlier testimony, were references to a proposed comic titled, KID COMICS. Under questioning, Fox goes into detail:

Blum: Did you take up this matter of this Kid Comics magazine with Mr. Donenfeld?

Fox: I suggested to him that I would manufacture a so-called tabloid sized comic magazine which would be twice the size of those ordinarily sold by other publishers of 28 or 32 pages, I don’t recall which, and I submitted this dummy to him and I said, “I want you to put this out for five cents, as a five-cent seller. There is no other one in the market for five cents. I would like you to distribute it for us.” He said, “Let me have the dummy. I will talk it over with my associate and we will let you know.”

This proposed publication (which was new to me) sounds quite a bit like Eisner/Iger’s JUMBO COMICS, which was itself a reworking of the material they had produced for J.B. Power’s overseas tabloid, WAGS. What makes this different is Fox’s suggestion to Donenfeld (if he is be believed) that it be priced at five cents.

Questions abound: was this proposal actually made to Donenfeld by Fox? If so, when? Was KID COMICS an earlier version of JUMBO with the same contents, or was it a later creation, containing new material?

In any case, KID COMICS was key to the defense’s position that DC was the real plagiarist:

Mr. Blum: Just a minute please, I am replying to the Court. He (Fox) verifies this affidavit in March, 1939, and he says, “I find that a number of ideas that were embodied in the dummy of Kid Comics which I left with Donenfeld are being used in a number of Donenfeld’s comic magazines; to wit, Action Comics,” and then he referred to two other magazines.

The Court: In other words, your position is switching around and claiming that in effect Mr. Donenfeld’s organization was plagiarizing something that they saw--I don’t know the names of the people that were on the stand yesterday--that were drawn and submitted to you; that is what you are claiming?

Mr. Blum: That is correct.

This startling accusation was apparently just a ploy to put the DC on the defensive. Nothing other than Fox’s words support the claim and to this point, no dummy copy of KID COMICS has yet been found.

Next installment, the plaintiffs speak.

DC VS VICTOR FOX: The Testimony of Will Eisner

STATEMENT OF FACTS

Will Eisner is my hero.

That line will surely come as no shock to anyone who has spoken to me about comics for more than five minutes or read any of my many articles or posts related to the man. To me he was a Promethean figure: creative, farsighted and flat-out brilliant. The fact that he was one of the few comic book creators to come out of the Golden Age financially well off, says as much about his business savvy as his artistic instincts.

I’ve admired, too, his apparent honesty. In a time when the comic industry was dominated by publishers with shady--if not criminal--pasts, Eisner played it straight. Nothing spoke more to his integrity than the story of his testimony in the groundbreaking lawsuit officially known as Detective Comics, Inc. vs. Bruns Publications, Inc., Kable News Company, and Interborough News Co., but more to the point, it was DC vs. Victor Fox.

In short, Fox had taken note of the spectacular sales of ACTION COMICS and hoping to catch the coattails of the comic’s lead feature, quickly contracted the Eisner/Iger shop to produce an imitation Superman. As the story goes, Eisner had his misgivings:

"…Iger made a very convincing argument, which was…that we were very hungry. We needed the money badly, " Eisner told interviewer John Benson in his 1979 fanzine, PANELS, "…when the first sequence was finished Fox decided he wanted to put the title on and he called it, strangely enough, Wonder Man."

"I suppose when you're young," said Eisner continued, "it is easier to adhere to principles…At any rate, when I did get on the stand and testified under oath, I told the truth, exactly what happened." [PANELS, pgs. 10-11]

Years later, Eisner told a more detailed version to writer Bob Andelman, which was then recounted in his posthumous biography, A SPIRITED LIFE.

“It’s simple. Go into court and say you thought up the idea and that’s it,” Iger said, “They can’t sue you because you were paid for it.”

“I can’t do that,” Eisner said. “It’s not true. Victor described the character exactly the way he wanted him in a handwritten memo. Obviously, a complete imitation of Superman.”

“Eisner agonized about what he’d say at the trial. Finally, he decided that he couldn’t commit perjury and, when called to the witness stand, he testified that Fox literally instructed Eisner & Iger to copy Superman.” [A SPIRITED LIFE, pgs. 44-45]

A thinly disguised fictional version even made it into Eisner’s graphic novel roman à clef, THE DREAMER.


THE DREAMER pg. 42 (1986)
[Eyron=Eisner, Reynard=Fox and Heroman=Wonder Man]
According to every version, Eisner’s confessional testimony led to DC winning the suit and Fox subsequently punishing the Eisner/Iger shop by failing to pay them $3,000 for the work they had produced for him.

This inspirational story fascinated me and prompted me to search for the transcript of the case. For years I tried contacting sources in New York City, where the case was heard by District Judge John M. Woolsey on April 6 and 7, 1939. I even imposed upon a Manhattan lawyer to see if he had access that I couldn’t get. All to no avail. The transcript was apparently lost forever.

Then out of nowhere, I recently received an email from a person who had read my online article, "Rare Eisner: Making of a Genius", telling me he had obtained a copy of the transcript and asking if I’d like to see it.

I could hardly type my affirmative reply fast enough.

In short order, my benefactor (who has requested anonymity) sent me a PDF file of transcript. For the next couple of hours I pored over the contents--and was stunned. It was like sitting in the courtroom listening to history. In my opinion, this transcript is one of the most important documents related to comic book history to ever come to light.

Both preceding and following Eisner on the stand were Jerry Siegel, Max Gaines, Sheldon Mayer and Jerry Iger, as well as the main combatants, Harry Donenfeld and Jack Liebowitz from DC and the defendant, Victor Fox. There is much revealed and much to discuss, but rather than try to do it all in one post, I’ll spread it out over several. This post will be all about Eisner.

To maintain the historical accuracy of Eisner’s testimony, I’ve decided to show you images of the scanned pages. All 27 of them. Following the page scans, I’ll be back for a summary.

[note: As the scans were made from bound pages, there is a waviness to them that I attempted to correct with an image editing program, with limited success.]

The people appearing in this transcript are:

-- William Eisner, defense witness herein referred to as The Witness
-- Asher Blum, attorney for defendant Brun Publications (Fox)
-- Samuel Fried, attorney for co-defendants Kable News Co. and Interborough News Co.
-- Horace Manges, attorney for the plaintiff Detective Comics, Inc.
-- Judge John Woolsey, herein referred to as The Court

The exhibits referred to in this suit were submitted along with the affidavit of Jack Liebowitz:


Exhibit I, pg. 1

Exhibit I, pg. 2)

Exhibit I, pg. 3
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TESTIMONY OF WILL EISNER


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SUMMARY

If you’ve made it this far, I assume you’ve read Eisner’s testimony in total. And if you have, you too have noticed the obvious discrepancy between Eisner’s oft-repeated version and his words before the court.

[full disclosure: This posed a true dilemma for me. Part of me wanted to protect the image of my idol by keeping this information to myself. Part realized the importance of this document to comic history and my responsibility as a reporter. I can't deny history, so as much as this truly pains me, I set my personal emotions aside.]

There is no equivocation on his part. Eisner takes full credit for creating Wonder Man months before ACTION COMICS hit the newsstands, without any knowledge of Superman himself and without Fox‘s prompting. Eisner’s testimony was in lock-step with both Iger and Fox, which will become evident in a subsequent post. Contrary to the image of the idealistic young artist risking his financial well-being on principle, it appears he succumbed to the urgings of his partner and their client.

One point not mentioned in the transcript, but one which Eisner himself frequently mentioned: he was one of the editors that had rejected Siegel and Shuster’s Superman strip before DC bought it.

“One day Eisner received a letter and sample art from two Cleveland kids, Jerry Siegel and Joe Shuster. They were peddling two comic strips, one called “Spy”, the other “Superman”.

“The truth of the matter is that when I saw their stuff, I didn’t think that any of our customers would buy it, and I was right,” Eisner said.” [A SPIRITED LIFE, pg. 43]

If the plaintiffs’ lawyers had known about this prior knowledge, or if Siegel had recalled his submission to Eisner, it could have made his testimony even more uncomfortable.

As I stated previously, there is much more fascinating testimony in this transcript that I will be presenting in future posts. The parade of witnesses provide a plethora of revelatory detail about their shadowy world of publication and the creation of Superman in particular.

Will Eisner is still my hero; creative, farsighted and flat-out brilliant. But flawed, just like everyone else. Just a man and not a Superman.