Harry 'A' and the Flying Cadet Mystery

     It was the itch I couldn't scratch. A decade of research resulting in my biographical study of Archer St. John and his publishing company, Archer St. John & The Little Company That Could, left a lingering question floating in its wake. What was St. John's relationship to Harry 'A' Chesler and how did he figure in St. John's entry into comic book publishing? I had resigned myself to never solving this so-called "Flying Cadet Mystery" until recent discoveries answered at least some of my questions.  -- Ken Quattro

     Special thanks go to the Roxbury (New Jersey) Public Library and Sara W. Duke, Curator of Popular and Applied Graphic Art at the Library of Congress, for her invaluable help with my research.
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BIRTH OF A SALEMAN

  Harry 'A' Chesler, circa age 78 from the SUNDAY JOURNAL (Dec. 19, 1976)
     Harry 'A' Chesler had a long career in sales by the time he entered the comic book game. Early on, this grocer's son wrote sales orders for a wholesale grocery house, purchased space in the Bergen Evening Record and resold it to advertisers, and by the early Twenties, had his own company selling outdoor advertising. He bounced from Philadelphia (where his name acquired the superfluous 'A' while he was employed at the PUBLIC LEDGER) to Chicago and back again to his native New Jersey. Always looking for a new opportunity; always on the make.

  NEW YORK TIMES classified ad (April 1. 1923)
    Well into this peripatetic career, Chesler stumbled into comics. On August 15, 1935, he copyrighted, but either never published or limitedly distributed, a tabloid-sized text and comics hybrid publication entitled CHERRIO. Some of the features such as King Kole's Kourt, Lucky Coyne and the Cheerio Minstrels appeared in future Chesler comics. By the next year, Chesler had assembled a staff of artists and writers that was supplying original material to not only the two comics published under his own imprint, STAR and STAR RANGER, but also to competing publishers. He also formed Syndicate Features in an attempt to shop such strips as "Dan Hastings" and revived versions of "Little Nemo" and "Foxy Grandpa" to newspapers.

  King Features letter asking to license  Foxy Grandpa from Chesler (March 11, 1937)
     While his newspaper strip venture was apparently stillborn and the comic books not sufficiently profitable (resulting in their sale to Frank Temerson and I. W. Ullman's, Ultem Publications), his comic shop survived in various incarnations into the 1950s.
     Early on, Chesler saw the potential of comics as an advertising source. He used his comics to cross-merchandise the probably-never-produced King Kola soft drink (a name he appropriated from a beer brand he once marketed),  the powdery milk-additive, Cocomalt and the George Nagle/Charles Biro "Goobyland" feature with a series of trading cards for Yum Yum Desserts.

  Goobyland  STAR COMICS #5 (July-Aug. 1937) [image retrieved from The Digital Comics Museum,  Marble River scan]       Goobyland card that came in packages  of Yum Yum Desserts products (1938)
     Apparently hoping to cash in on the boom created by the success of Superman and other costumed heroes, Chesler re-entered the publishing business with the formation of Dynamic Publications in 1941.

  DYNAMIC COMICS #1 (Oct. 1941)  back cover house ad featuring the first issues  of each of the 1941 Chesler comics   

      This brief foray was similarly short-lived and unsuccessful as his earlier effort. Only a handful of issues of SCOOP, PUNCH, DYNAMIC and YANKEE comics were produced before Chesler once again threw in the towel.

  One of the lawsuits generated by Chesler's 1941 publishing venture   __________________________________________________________

THE PAPER WAR

      As fate would have it, Chesler's latest publishing disaster ended just about the time the Japanese attacked Pearl Harbor on December 7, 1941. Although staggered, the U.S. regained its balance and quickly assumed a wartime footing. Just over five weeks after the attack, President Franklin Roosevelt issued Executive Order 9024, establishing the War Production Board (WPB). The WPB was created to oversee the war procurement and production program, which included the restriction of certain materials crucial to the war effort. Among these was paper.
     "The reason for the increased demand," wrote WPB Chairman J.A. Krug in a report to President Truman in 1945, "...is directly traceable to increased military needs: Increases of ordnance pulp, used as a substitute for cotton linters in explosives, of waterproof papers for the Army, of photographic papers, of containers, of V-boxes for over-seas shipment. Practically every piece of equipment produced in the United States today is packaged in some manner in a paper or paper product." [pg. 48-49, War Production in 1944, Report of the Chairman of the War Production Board]
    To confront this pressing need, the Printing and Publishing Division of the WPB proposed voluntary restrictions for the various publishing industries (newspaper, magazines and books) applying a formula based upon a percentage of the paper tonnage they individually used in 1941. It soon became apparent that such an honor system was rife with violators and in response, the WPB issued a series of "Limitation Orders" that set quotas for various paper users that went into effect on January 1, 1943.They also established an appeals process for companies that claimed they had need for an increased quota based upon their particular situation.
     Ready to take another shot at comic book publishing and unhappy with his paper allotment, Harry 'A' Chesler appealed.
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THE DOLLAR-A-YEAR MAN

     "Dynamic Publications, Inc.. published one issue each of two comic magazines in 1942 and then suspended publication because of financial difficulties caused primarily by the fact that its magazines did not sell," so noted Allen E. Norman, Chief of the Magazine and Periodical Section of the WPB in a summary of appeal cases he presented to a Senate committee investigating the state of the national defense program in June, 1944. ¹ 
     " According to Mr. Chesler," Norman continued, "the newsstand returns on Dynamic Publications were about the worst in the business, only one copy being sold out of every three produced. With two out of every three copies being returned unsold it is not surprising that Dynamic Publications was not a financial success."
      "Mr. Chesler appealed for extra paper to reenter the magazine-publishing business on a scale larger than that which he enjoyed in the days when he was unable to compete successfully in a free market. He admitted that financial difficulties, arising from the unsalability of his magazines, was a prime factor in his discontinuing operation, and listed several other factors as contributing to this
situation, namely, his state of health, disagreements with his distributor, and the drafting of his personnel. Investigation revealed the unsubstantial nature of these claims, since his state of health was sufficient to permit him to earn a fee of $1,500 per month in doing art work for others, and most of the personnel which he mentioned had been drafted several months before the company started
publishing. His discussion of his troubles with his distributor consisted mostly of derogatory statements about the Fawcett Distributing Corporation and its personnel." ² 
     In fairness to Chesler, he had some reason to distrust Fawcett and it involved Allen E. Norman himself.

  Appointment of Allen E. Norman to WPB post from THE HERALD STATESMAN (Jan. 3, 1944)
     Prior to his appointment as head of the Magazine and Periodical Section, Norman was secretary of Fawcett Publications and its subsidiary corporations.³ Though he was on leave from this position and serving voluntarily with the WPB as a "dollar-a-year man", he was still receiving a comfortable salary of $1,333.33 per month from Fawcett. ⁴ This cozy situation didn't go unnoticed and complaints about it led to Norman being questioned by the same Senate committee investigating the defense program. Questions asked by Senator Homer Ferguson specifically concerning an in-house Fawcett publication. ⁵ 

FERGUSON: I want to show you an exhibit here [Exhibit No. 1189]. Do you know what that exhibit is?

NORMAN: I certainly do.

FERGUSON: What is it?

NORMAN: It is page 9 from the February issue of a house organ known as Fawcett Distributor, published by the Fawcett Distributing Corporation.

FERGUSON: What year was it published ?

NORMAN: 1944.

FERGUSON: And at that time you were the enforcing officer of the order for magazines?

NORMAN: I was, sir; yes. I was the Chief of the Section.

     After a line of questioning that established Fawcett's place among "seven or eight large national magazine distributors",  Chief Counsel for the committee, Hugh A. Fulton, zeroed in on a portion of the aforementioned Fawcett house organ.

FULTON: I think, if you look at the front page of that exhibit, there is a statement of how many, or at least a statement of the number of magazines [distributed by Fawcett]; is there not ?

NORMAN: Very frankly, I haven't even read the rest of this article. I read those two paragraphs and practically fell off my chair.

FULTON: When did you first read those two paragraphs?

NORMAN: The night of March 21,1944.

FULTON: How large a distribution would that house organ have ? It is fair to call it a house organ ?

NORMAN: I think so, sir. Well, I am sure under the interpretations that we have. It would go, Senator Ferguson, I presume, to the whole list of independent distributors through which Fawcett distributes magazines—there are some 700 of those—and it would go to publishers whose magazines Fawcett distributes, and it would probably go to some prospective publishers whose magazines they may hope to distribute.

     Then, Senator Ferguson jumped back in and asked Norman to read the two paragraphs that were cause for concern.

NORMAN [reading Exhibit No. 1189]: "These franchises [the independent distributors] will pay off even greater profits in 1944."
     The value of a franchise in wholesale distribution means a great deal, and the position that magazines have on the newsstands, and that sort of thing. [reading Exhibit No. 1189] "This is a case in which Fawcett foresight and careful planning aided us in getting the most possible from our paper allotments."
     Do you want me to read the whole thing, and then let's comment piecemeal ?

FERGUSON: Afterwards.

NORMAN [reading Exhibit No. 1189] : "We were fortunate enough to have Allen E. Norman, secretary of the Fawcett corporations..."

FERGUSON [interposing]: That is you, by the way?

NORMAN: Yes, sir. [Reading Exhibit No. 1189]: "...acting as a consultant to the Printing and Publishing Division of the War Production Board; and W. H. Fawcett, Jr., president of the Fawcett Corporations, as a member of the magazine task force..."


FERGUSON [interposing]: What is the task force? An advisory committee?

NORMAN: It is a group which acts as an operating committee for the Magazine Advisory Committee [of the WPB]. It is a little more flexible than the Magazine Advisory Committee. Some of the members only live [sic] from San Francisco to Boston to Birmingham.

FERGUSON: All right.

NORMAN [reading Exhibit No. 1189]: "...which cooperates with the Printing and Publishing Division of the War Production Board. This enabled us to really know the paper situation at all times. Roger Fawcett, in the New York office, carried out the War Production Board orders and suggestions so far as Fawcett-published magazines were concerned. It has been largely through the excellent work of this trio..."

FERGUSON (interposing): Who is this trio?
  
NORMAN: That would presumably be W. H. Fawcett, Roger Fawcett, and myself. [reading]"...that F. D. C.," —that is Fawcett Distributing Corporation—"...has been able to make its plans for 1944 long in advance, thereby providing our independent wholesalers with a goodly supply of magazines to assure high profits for this year."  ⁶

  Roger, W.H., Gordon and Roscoe Fawcett [image courtesy of P.C. Hamerlinck's FAWCETT COMPANION]
     This apparently damning paragraph insinuating collusion between Norman and Roger Fawcett to benefit the Fawcett distribution corporation was dismissed by Norman as, "...a very ill-chosen selection of words ...written by a minor employee of Fawcett Publications in the Greenwich, Conn., office." ⁷
     (Even though the article in question carried the byline of "Roscoe Fawcett", company circulation manager and a Fawcett sibling, the anonymous Fawcett employee Norman was so willingly threw under the bus was revealed to be Gene Fornshell. Fornshell was conveniently in the Army at the time and unable to respond to Norman's claim of his responsibility for the offending paragraphs.) 
     The whole matter had come up when a publisher seeking a larger quota of paper, appealed to the Magazine Section headed by Norman and presented the house organ article as evidence of his partiality toward Fawcett, a competing publisher. Norman's superior, Dr. Arthur Holcombe, Chairman of the Appeals Board for the whole WPB, ruled the evidence as irrelevant and the publisher's appeal was denied.
     The publisher questioning Norman's impartiality was the National Police Gazette Corporation. The NATIONAL POLICE GAZETTE had been bought in 1933 by Merwil Publishing. Merwil was the publisher of a men's soft-core pornographic magazines and was owned jointly by Merle Williams Hersey and the brothers, Irwin and Harry Donenfeld. Significantly, among the Donenfelds other publishing ventures was National Comics (D.C.), Fawcett Publishing's direct and very litigious competitor. Merwil lost the tabloid to bankruptcy in 1935. By the time of their appeal before Norman, the publisher of the NATIONAL GAZETTE was Harold H. Roswell.
     While the "house organ matter" wasn't brought up by Chesler in his own appeal before Norman, he asserted that Fawcett, at once his distributor and a competing comic book publisher, purposely drove him out of business.
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 PAPER CUT

      "The Printing and Publishing Division contended, and the Appeals Board concurred," continued Norman's report to the Senate committee, "that it would he illogical to allot a sizable quantity of a critical war commodity to a publisher who could not operate in normal times, so that he might operate in the highly artificial market caused by the paper shortage. The last year that Mr. Chesler published for 12 consecutive months was 1938, 4 years before the paper-limitation orders were put into effect."
      "Mr. Chesler is now being investigated by the Compliance Division in New York. In the first quarter of 1943 he overused his quarterly allotment by about 250 percent, and in addition he participated in the publication of four and one-half million copies of comic magazines without a paper quota." ⁸
     Unmentioned in the report were the titles of the comics in whose publication he "participated". Since none bore either his own name nor that of his Dynamic Publications, it is likely that these were surrogate publishers fronting for Chesler, who likely got a piece of the action.
      "Another matter of investigation is whether or not Mr. Chesler falsely represented his paper usage in 1942 in order to obtain the paper quota that was recognized for him."
      "Mr. Chesler's case has been reviewed on two separate occasions by the Printing and Publishing Division, and he has been given two oral hearings before the Appeals Board in order that he might present any material that would support his claim of excessive and undue hardship. Following both hearings the Appeals Board issued letters of denial."  ⁹
     This denial of his quota appeal would seem to end Chesler's wish to get back into publishing. But Chesler wasn't so easily discouraged. If he couldn't get the paper he wanted to publish in his own name, perhaps he could buy it from someone else.

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FLYING CADET TAKES FLIGHT

     On an undated sheet of typing paper, Chesler (or someone in his employ) wrote out a list of comic titles: THE ARROW, DETECTIVE EYE, FANTOMAN, FUNNY PAGES...nineteen titles in all. Obscure comics, mostly short-lived and some that hadn't been published for several years. Linking all of them, though, was a lineage that began with Chesler himself.
     He had sold two of the titles on this list--STAR and STAR RANGER--to Ultem Publications back in 1937. Similarly, William Cook and John Mahon sold two of their Comics Magazine Company's titles, FUNNY PAGES and FUNNY PICTURE STORIES, to Ultem in the same period. Eventually, Ultem sold all of these to Centaur Publications, the comic book venture owned by pulp publishers Joe Hardie and Raymond Kelly. The rest of the titles on Chesler's list were filled by comics published by Comic Corporation of America, the imprint used by Hardie and Kelly as the successor of Centaur.
     On March 15, 1944, Chesler wrote a letter to Ray Kelly asking about acquiring the rights to FUNNY PAGES and AMAZING MAN.

  Letter from Chesler inquiring about the availability  of two defunct Comic Corp. of America comics.
     Within a week, Chesler received his reply.

  The reply of co-owner, Raymond Kelly
     Undeterred, Chesler looked elsewhere. He didn't have to look any further than to a publisher who had been the beneficiary of fortuitous ruling in another quota appeal.
     Like Chesler, the publisher of AIR NEWS magazine had appealed for an increase in its paper quota. Phillip Andrews, owner of his namesake Phillip Andrews Publishing, claimed that the increase was based upon, "...the essentiality of the publication in the war effort and on his competitive standing with other aviation magazine publishers."
     Andrews request was initially rejected, but the appeals board eventually agreed to increase, "...Phillip Andrews' quota along with that of  SKYWAYS, FLYING CADET and various other publishers," of aviation magazines. ¹⁰
     FLYING CADET was a curious hybrid publication. Although in most ways it was a straightforward aviation magazine, packed with text and photos of airplanes and pilots, it also featured a comic book style section in some of its early issues. Its editor, Archer St. John, obviously had an eye on the growing comic book market and was integrating some of its format into his magazine.
     (It should be noted that Phillip Andrews bought AIR NEWS from St. John, who was its original publisher. St. John then used that money to start up FLYING CADET.)

  FLYING CADET vol. 1 #1 (Jan. 1943)
     How Chesler became aware of FLYING CADET and its bonus paper quota isn't clear. Had he heard about it during his own appeal hearing? Or did he know St. John through his previous employment as advertising manager of Lionel Trains Corporation? In any case, in September 1944, they struck a deal.
     The deal was spelled out in a letter to Chesler from his attorney, David Alterbaum, dated September 12, 1944. In it, Alterbaum notes that on September 1st, St. John organized the Flying Cadet Publishing Company, Inc., paying $500 for its 100 shares of capital stock. In turn, St. John sold those shares to Betty Chesler for the sum of $500. Subsequently, St. John then sold, "...all his right, title and interest in and to," FLYING CADET magazine to the corporation.
     And he was well compensated for the sale.
     Chesler agreed to pay St. John $38, 000, with $20,000 of it up front and the rest in 12 monthly installments of $1,500 beginning October 1, 1944.
    
  Details of the agreement between  Archer St. John and Harry 'A' Chesler  (Sept. 12, 1944) [note writer/editor Kenneth Fitch named as Secretary]
     It's a fair assumption that this influx of cash helped finance the start up of St. John's eponymous publishing company a few years later.
     Although the owner's statement in FLYING CADET vol. 2, #7 (17) names St. John as editor, business manager and owner, by the time it was published on October 1, 1944, he had already assigned the copyright to Chesler (aka Flying Cadet Publishing Co., Inc.) on September 8th. The comic (and by now, its contents were mostly in comic book format) ended with this issue. Chesler didn't care about the title; he had other plans.

  FLYING CADET #17 [vol. 2 #7]  (Oct. 1944)
      On paper, Flying Cadet Publishing Co., Inc. and Dynamic Publishing, Inc. were separate companies. In reality, they had the same owner operating (for a time) from the same address at 163 W. 23rd Street. This led to the somewhat absurd, but probably legally sensible situation which found Chesler corresponding with himself.
     Chesler was working one more angle. 

"Gentlemen:

     The following offer is hereby submitted to you:

          1. You are to have the exclusive right to publish and distribute the magazine, DYNAMIC COMICS and PUNCH COMICS, beginning with the January, 1945 issues thereof...". 

     So began the two-page agreement draped in legalese that granted the Flying Cadet Publishing Co., Inc. the license to publish several comics for a set royalty fee.
     The agreement goes on to specify that no less than 200,000 copies of each issue must be published. It also states unequivocally that, "It is understood and agreed that this license does not include any rights of the licensee in and to any paper quotas which may or may not be assigned to us, as licensors."
     Since Chesler had been denied a paper quota increase as Dynamic Publishing, this sentence didn't mean much, if anything. This is followed by the carefully crafted, "It is understood and agreed that this license shall not be construed to be that of a joint venture or partnership, and that you undertake the ultimate risk of publishing venture in connection with these magazines."
     Seemingly, a perfectly normal agreement designating the terms between two different companies. In actuality, Chesler was to profit both from the sales of a comic on the newsstand and from a royalty he would pay himself for the right to publish it.
     A perfectly executed double-dip.
     The agreement was accepted, naturally, and signed by Flying Cadet Publishing Co. Inc.'s secretary, Kenneth Fitch. Fitch, longtime writer and editor, was doing double-duty himself.
     How much this royalty meant is spelled out in a statement sent out on April 23, 1945. In it, the sales of DYNAMIC COMICS #13 and 14, and PUNCH COMICS #12 and 13, totaled and divided by the 1/4 cent royalty, netted Dynamic Publishing $3,787.50.

  PUNCH COMICS #12 (Jan. 1945)        On May 5, 1945, the license was renewed and expanded upon. Dynamic Publishing now graciously allowed Flying Cadet Publishing to not only publish more issues of DYNAMIC and PUNCH, but also the new title, RED SEAL. All other terms remained the same except that now it was specified that at least 250,000 copies of each comic had to be published per issue.

  AMERICAN AIR FORCES #1 (1944)        The debut issue of AMERICAN AIR FORCES was also published under the Flying Cadet Publishing imprint. What kind of deal Chesler had with Vincent Sullivan's emerging Magazine Enterprises is unknown. But it is perhaps noteworthy that the comic was similar to the final issue of FLYING CADET, with a mix of comic and magazine material. Ironically, the format lived on if the title itself did not.
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POSTSCRIPT

     Harry 'A' Chesler was always looking for a new opportunity. By the mid-Forties he had made enough money off his various comic sorties to veer off into other ventures. He purchased 200 acres of land off Eyland Avenue in Succasunna, New Jersey, containing a pond. With the help of bulldozers, the pond was reshaped to resemble a horseshoe. And it was soon revealed to be part of a much larger plan.
     In March, 1947, Chesler announced that he had invested $200,000 in Horseshoe Lake Park, a venue that was to include, "...[a] restaurant, a tap room and a ballroom, the latter having a floor space of 60 by 120 feet." ¹¹  The complex, still under construction and set to open on June 1st, was also to feature, "...a Merry-Go-Round, Ferris Wheel and Caterpillar for a starter." ¹²  Two years later, it seems the project was still under construction, but none the less ambitious.

  From BILLBOARD (Feb. 26, 1949)
      Perhaps Chesler's amusement park was never fully realized. Given Chesler's penchant for reusing old names, perhaps the citizens of Succasunna were spared an amusement park named Goobyland.

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ENDNOTES 

¹  Investigation of the National Defense Program. Hearings before a Special Committee Investigating the National Defense Program, Pt. 22-24, (1944), pg. 10861.

²  Ibid.

³  Ibid., pg. 10457.

⁴  Ibid.

⁵  Ibid., pg. 10453.

⁶   Ibid., pg. 10454.

⁷  Ibid., pg. 10455.

⁸  Ibid., pg. 10861.

⁹  Ibid.

¹⁰  Ibid., pg. 10860.

¹¹  "Horse Shoe Lake, Still In Building Stage, Bows June 1", BILLBOARD, March 29, 1947, pg. 102.

¹²   Ibid.

Additional general information sources include:

Ewing, Emma Mai, "The Funnies Can Be Serious",  THE NEW YORK TIMES, Sept. 12, 1976, pg.347.

Babbage, Joan, "Comics' "Father" Helping Fairleigh Make A Home For His Children", THE STAR LEDGER, Jan. 20, 1976, pg. 27.

Mueller, John, "Harry 'A' & The Golden Age Of Comics", SUNDAY RECORD, Dec. 19, 1976.

OWENS v. AMERICAN STEREOGRAPHIC

     This is the third and final installment of my investigation into the litigious back story of 3-D comic books. To get a full understanding of what follows, it is best to have read both of my previous posts, "Two Views of 3-D Comics" and "Tale of the Tape". Unheard in the courtroom, but very much in the minds of the participants, chosen portions of the tape are interspersed throughout this article.-- Ken Quattro
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          FELDSTEIN: When we made all these conjectures, I lifted myself from being Lenny’s friend, and looked at it from a purely business point of view.

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THE PLAINTIFFS

     The whole situation had gotten out of hand. It started with an uncomfortable business meeting between old friends, schoolmates, suspiciously eyeing one another over a contract. Clandestine dealings and a month of contentious communications followed, capped by a surreptitiously tape-recorded interrogation/brainwashing. Smooth legalese soon tempered blunt accusations and elevated a Brooklyn street fight to a Foley Square courtroom.

Stenographer's minutes from  OWENS v. AMERICAN STEREOGRAPHIC [filed Oct. 7, 1953]

 
     On Sept. 1, 1953, the attorneys for the opposing parties appeared before Judge Irving R. Kaufman at 10:30 a.m. to argue the case. Emanuel Posnack, who represented American Stereographic, the corporation formed by brothers Norman and Leonard Maurer, their friend Joe Kubert and publisher Archer St. John, requested more time to prepare his case. Martin Scheiman, representing inventor Freeman H. Owens as well as Gaines, fought that request. Judge Kaufman heard both attorneys and granted a one week delay. The case was rescheduled for the following Tuesday, after the Labor Day holiday.
     The attorneys next appeared before Judge Edward A. Conger on September 9, 1953, which was a Wednesday. In a quick hearing, Scheiman requests to be heard as soon as possible. It is indicated that Posnack cannot make it the next day (Thursday). Court is adjourned and convenes once more at 10:30 a.m., Friday, September 11th.
     Scheiman immediately asks the judge for permission to serve Posnack with additional papers. When the court asks why, Scheiman launches into a long story explaining how Posnack served him with papers late in the afternoon the previous Wednesday. Since it was so late in the day, and the following Thursday was a Jewish holiday, he wasn’t able to serve Posnack in turn. The judge cuts Scheiman short and allows him to serve Posnack with additional papers. The court briefly adjourns.
     When court finally resumes at 12:15, Scheiman begins.
     "If your Honor please, this is a motion for a preliminary injunction in connection with a suit for the infringement of a patent issued to one Freeman H. Owens, on October 13, 1936. The patent will expire on October 13 of this year."  ¹ 
     "Then it will be moot on October 13th," reasoned Judge Conger. Scheiman agrees, and after noting all the parties involved, he points out the uniqueness of Owens patent,“…to provide a set of complementary stereographic pictures from a flat drawing.” He goes on to say, “Lest your Honor be in any way misled by what I say, I want to impress upon you that no claim is made by the Owens patent or by the plaintiffs that Mr. Owens invented anything new in the sense of stereoscopy as a science, which has been long and well known for perhaps a hundred years or so; what he did do in his invention was to make it possible to make an ordinary drawing and by a unique process convert that drawing into something which could be adapted to several forms of entertainment, advertising, and other purposes.”

"Method of Drawing and Photographing  Stereoscopic Pictures in Relief"

(patent # 2057051)      

     “If you will examine the letters patent you will note that Mr. Owens illustrated his process in part by the use of certain panels cartoon-like in character depicting what might be termed a Tarzan-like scene.”      
     "The defendants," Scheiman continued, "have produced in the recent past a number of so-called comic books. Several of them are before your Honor. The first one which was produced by the defendant St. John pursuant to the process which I have referred to as the Illustereo process professedly invented by certain of the individual defendants, was on the New York newsstands approximately on July 3rd or July 5th."
     "It has been followed in rapid succession by a number of similar comic books employing the same process."
     "It is the plaintiffs' contention, and I don't think there can be very much doubt of that in view of the affidavits that are now before this Court, that the defendants have, in fact, made use of the Owens process in the preparation and production of their comic books. 
     “The defendants have attempted to explain their position by introducing the proverbial red herring in this matter in large quantity. I submit, your Honor, that most of those red herrings are so decomposed that they putrefy the atmosphere,” Scheiman suggested. You should imagine that he took a pause to let his colorful imagery sink in.
     “The defendants have attempted by the use of distortions and other media to create the impression that the Owens patent is not a patent relating to the conversion  of an ordinary drawing into a 3-dimensional effect. That, your Honor, I submit is equally transparent and sham.”
     Scheiman then presents an affidavit from a retired chief examiner for the United States Patent Office named George Hanlin. Hanlin was the examiner who approved Owens original 1936 application and Scheiman claims that his affidavit , “…clearly and convincingly demonstrates that the Owens patent is beyond reproach, beyond criticism, as valid as any patent.”
     Scheiman notes the case being made by American Stereographic is, “…that the Owens patent constitutes in part prior art.” This claim, he says, undermines their own Illustereo patent application, which was made in May, 1953.
     Legally, prior art constitutes everything ever known publicly about an invention before a given date. In other words, if knowledge relevant to an invention is accessible by the public, it could disqualify a patent application. A trade secret, which is confidential information not readily available to the public, is usually not considered prior art.
__________________________________________________________

          GAINES: Now, at that time, I was very definitely given to understand that he had...that you had...patents pending.

__________________________________________________________

    Scheiman further contends that the defendants' application, "...to my knowledge has not been prosecuted beyond its initial stages, except that the defendants have alleged that they have made application for special treatment of that particular application."
     The special treatment he referred to was the requested accelerated consideration and approval of the Illustereo application by American Stereographic. Clearly, they wanted to get their comics on the stands and start licensing their process as soon as possible. The 3-D fad was currently hot, and there were no guarantees on how long that would last.
     After stating his opinion that this request would be denied, Scheiman says, "If the defendants knew about the Owens patent at the time they "jumped the gun" then they have committed a serious wrong, created an immoral situation, in my humble judgment."
     "If they did not know about the Owens patent existed at the time they filed their application, then they were guilty of inexcusable ignorance because they professed in their papers to have made a laborious search through experts."
__________________________________________________________

          FELDSTEIN: Who made St. John’s patent search?

          KUBERT: The one guy was this Asher Blum." 

__________________________________________________________

     Asher Blum was an old-time patent attorney and while it's curious that St. John used him instead of Posnack to do the patent search, it's even more interesting (as far as comics history is concerned) that Blum was the lawyer for Victor Fox in the landmark copyright infringement lawsuit brought against him by D.C. comics, Detective Comics, Inc. v. Bruns Publications. [covered in my article in ALTER EGO #101 and online beginning here: DC vs VICTOR FOX]
     Scheiman went on. "It would be impossible, your Honor, for a patent of this nature to be overlooked in the ordinary course of such a search. But I shall no dwell upon the facts in that connection, because it is unnecessary to the attainment of the relief sought herein to prove knowledge on the part of the defendants or lack of it."
   Once again asserting that the defendants had "usurped" Owens process, Scheiman points out, "...that the papers that have been interposed by the defense illustrate and clearly depict a steady retrenchment, a steady backward motion of the position originally asserted by the defendants as to their rights."
     "For example, in the original comic book published, the first one of this nature using the plaintiffs' process and referred to in the trade and publicly as "Mighty Mouse", there are clear indications that the defendants have published this book pursuant to a licensed process for which a patent application is pending. Gradually and steadily the defendants have obliterated, removed, and concealed any such assertions."
     At this point, he picks up a comic book. "Yesterday, the book I hold in my hand, "Little Eva", went on the New York newsstands for sale, and it significantly omits any references to there even being a patent pending application for their alleged Illustereo process."

   

Comparison of "Mighty Mouse" comic with "Patent Pending" note 

and "Little Eva" comic without.

     Scheiman then makes another accusation. As soon as American Stereographic had applied for their patent in May, "They immediately licensed the St. John Publishing Company under that so-called Illustereo process."

     "I submit, your Honor, that the evidence before this Court suggests strongly that the defendants never intended in any way or manner to license anybody else. But they were pretty sly. They knew what they might be confronted with should they confer upon St. John an absolutely exclusive right, and they profess to offer such license to competitors of St. John."

     "They did this, mind you, sometime after they had given Mr. St. John the opportunity to be the first "infringer". 

     Hyperbole aside, there was some truth to Scheiman's accusation. Years after the fact, Leonard Maurer told interviewer Ray Zone,"We gave St. John a 25 percent partnership in our licensing company, along with a 6 month's head start for his publishing company in exchange for financial guarantees for Norman and Joe as Editors, and myself, as supervising producer...".  ²

     Scheiman went on.
     "But in the course of the next succeeding months or weeks they preferred self-styled standard licensing agreements to the plaintiffs in this action, and presumably to other comic book publishers in the City of New York and perhaps throughout the country."

    Copy of licensing agreement offered to E.C.  and likely other publishing companies.        "These contracts, those self-styled license agreements, are so unfair, your Honor, that if time permitted I believe I could convince you from the bench to agree wholeheartedly with me that it was never the intention of the defendants to license anybody other than St. John."
__________________________________________________________

          GAINES: How do we know that we don’t have the same process as you have? Or maybe we have a different process. Why should we pay you $2,500 a book?

__________________________________________________________

     Scheiman claimed that, “…in the course of the negotiations had by the defendants with the plaintiff corporations it became quite obvious to the plaintiffs and their counsel that the defendants had nothing to license, nothing to sell, and they were asking quite a price."

     “In the course of those negotiations because of the suspicious inclusion and/or exclusion of necessary clauses in the license agreement, the plaintiffs became suspicious.”
     “They undertook to make a search of their own. They discovered the Owens patent. They negotiated with Mr. Owens and secured a license agreement under the Owens patent and have been endeavoring since obtaining that license in July to publish 3-dimensional comic books for sale to the public.”

      Scheiman continued. “Now, your Honor should bear in mind that the comic book market today is highly competitive, that the introduction of 3-dimensional comic books was considered a great scoop. Mr. St. John has admittedly done a wonderful job filling his coffers with profits and in enhancing his prestige in the industry.”
     “The inventors admit in certain releases,” he states, “…that the market for 3-dimensional comic books is necessarily a limited one in respect of time, that in the course of a few months succeeding the introduction of the epic “Mighty Mouse”, it would be highly probable that millions of this one comic book would be flooded throughout the United States and elsewhere, perhaps, so that comic book publishers who undertook to sell their own comic books at a later date would find it virtually impossible to gain a ready and successful market.”
     “The evidence before the Court is replete by admissions by the defendants that it was their intention to glut and flood the market…”.
     The gushing  publicity that was so welcomed by St.. John and the others just weeks before was being used against them. "It was a publisher's dream come true," wrote Aron Mathieu in the August issue of WRITER'S DIGEST, "enough sales of one issue of one magazine to call it quits and retire...or bat out a dozen imitations for three months before the onrush of 50 hurried and harried competitors swamp the field."  ³ 
     Schieman opined that however the defendants learned of Owens' patent, "...they knew the Owens patent would expire, and whether they learned it when Mr. Owens sent letters to them, is immaterial. Those letters were sent in July. It has not stopped the defendants from releasing for publication three or four more of the same kind of books, employing the very same infringing process."
     “What cared they? They made their investment and they were going to protect it,” he dramatically stated, “But in an effort to conceal, to confuse, to obscure the rights of Mr. Owens and the plaintiffs in this dispute, they have resorted to skullduggery and roughism such that I have never confronted in my life.”
     When Judge Conger asks for an example of distortions claimed by Scheiman, he directs the jurist to Leonard Maurer’s affidavit. When Scheiman goes on at length to point out an observed discrepancy between Maurer’s affidavit and Owen’s, the judge finally cuts him off.
     “I don’t see anything so frightful about that. I don’t see that there is any great or deliberate or terrible distortion.”
     Scheiman makes one more attempt. He points to Norman Maurer's affidavit which attempts to show the differences between the Illustereo process and Owens' patent.
     "By the Owens process, several months are required to produce a 3-dimensional comic book," Maurer claimed,"whereas by the Illustereo process, the production can be completed in 14 days."
     Schieman sees this as a purposeful distortion on behalf of the defendants.
     "The matters pertaining to the placing of a book on the market are far beyond the process used. There are many things that follow the use of this process, the making of photographic plates, the printing on the plates, the assembling of the book, the putting of the covers on the books, the stapling of the books, the placing of the finished product in the hands of the distributors, and the like."
      "It is now obvious, transparent and clear that the defendants were attempting to delude the plaintiffs and they were attempting to delude this Court when they uttered those remarks."
     This draws no comments from the judge this time, so he launches right into another claim.
     “I realize full well that the Owens patent hs not been adjudicated before. The defendants are relying strongly on the fact that because the Owens patent has not been adjudicated, they can go on freely and merrily selling their books, preventing the plaintiffs from having the possibility of enjoying a fruitful market, and in that respect they estimate that whatever penalties they may have to pay in the future for their infringement will only be a fraction of the prestige they have gained by being self-professed pioneers in an industry that at the present time is one of great proportion.”
     “Your Honor knows that the 3-dimensional craze has seized this country in its grip,” Scheiman observed.  "Your Honor knows that while there is a tendency on the part of all of us to enjoy a fad or a fashion, these books will sell.”
     Then, obviously referring to Joe Kubert’s statements in the WRITER’S DIGEST article, “But Mr. Kubert, one of the inventors, said in a press release,” said Scheiman, “that by November there will be nothing left in the market. They are going to be sure that theirs are sold, and not their competitors, that their competitors will not have a free and equal chance to make a reasonable and proper profit.”

portion of WRITER'S DIGEST article (Aug. 1953) 

After acknowledging the fact that while he is not a patent attorney, Scheiman concludes that the defendants argument is, "...so much balderdash and nonsense...". Once again, he refers to Hanlin’s affidavit.
     "...a man whose integrity is clearly beyond reproach," Scheiman attests, "and I point to the contents of that affidavit as completely and significantly demonstrative of the fact that the Owens patent is entirely valid."
     He was much less impressed, though, by an affidavit supplied to the defendants by animator Paul Terry. In addition to being owner of Terrytoons Studios, Terry also licensed St. John to publish comic books based upon his cartoon characters. Including Mighty Mouse.

Paul Terry (July 13, 1951)
[Associated Press wire photo]

     This affidavit was what Posnack’s office presented to Scheiman late the preceding Wednesday. Scheiman asserts, “…that the only thing that impresses me in this affidavit is Mr. Terry’s residence, which is the Westchester Country Club, Rye, New York, and I envy him that.”
     Despite Schieman's flippant dismissal of Paul Terry's affidavit, there was no denying his animation credentials. Starting out in the studio of J.R. Bray and Earl Hurd, Terry had been witness to many of the earliest innovations in the industry. Bray had patented the method of making cartoons on translucent paper, a method cited by Terry as a predecessor of Owens' process.    
     “The affidavit is offered in a suggested attempt to demonstrate that the process described in the Owens patent was well known as far back as 1915. The affidavit,” claimed Scheiman, “was drawn in an inartistic attempt to convey the impression that one reading its contents would be impressed that such a process was indeed known to the animated cartoon industry in 1915.”  
     Scheiman disputes this by noting that, “ Mr. Owens’ patent states in its disclosure and in its specifications that its process involves the tracing of drawings on cells, which, in Mr. Owens’ language,is a well known process employed for many years in the animated cartoon industry.”

Detail from page 1 of the Owens patent

     Scheiman states that, “….the defendants either through ignorance, or, again, in an attempt to delude someone or some persons, suggested that that old process of tracing used in the animated cartoon industry is the Owens’ process. Nothing is further from the truth, and a close reading of Mr. Terry’s affidavit indicates that he said no such thing.”
     Scheiman then quotes Terry's affidavit at length.
     "As a result of my long experience, I am thoroughly familiar with the methods, processes and devices employed in the production of composite pictures having a stereoscopic, 3-dimensional effect."
     After granting that Terry is indeed familiar with such processes, Scheiman reads on, "Since 1915, I have actually used in  my various businesses and am still using a process relating to the creation of 3-dimensional effects from a drawing, whereby the final product, whether viewed through a stereoscope of some similar device, produce a final picture with a 3-dimensional or multi-planar effect."

John R. Bray's first patent, 

"Process of and Articles for Producing Moving Pictures"

(patent # 1107193)      

     Scheiman then makes a lengthy argument disputing Terry’s affidavit. He claims that Bray-Hurd patents referred to by Terry have been examined and contain no similarity to Owens’ except for, “…the simple expedient of tracing characters on transparent sheets.” He again notes Owens’ acknowledgement of that particular technique in his patent and to refute the defendants’ argument that it constituted “prior art”, a claim which, if proven, would devalue Owens’ patent. His counter argument once again, was Hanlin’s affidavit, which, Scheiman asserted, “…states that if there had been any such prior art he never would have granted the Owens (application) letter.”
     Scheiman finishes with, "There is nothing 3-dimensional about the Bray-Hurd process referred to by Mr. Terry. As I say, the affidavit is utterly insignificant, and if read in conjunction with the answering affidavits, the transparency of the argument is quite obvious.”
     This closes Scheiman’s presentation and the judge recesses the court until 2:15.
__________________________________________________________

 GAINES: He said Posnack has a civil suit all prepared to hit us with no matter what our process is.
 __________________________________________________________

THE DEFENDANTS

     William Gaines had good reason to be concerned about Emanuel Posnack.
     The man knew his stuff.
     Not only did American Stereographic have a top notch patent attorney representing them, he was an inventor himself. Putting the engineering degree he acquired to good use, Posnack had patented everything from desk accessories, to a stapling machine. He even invented an exhaust system for industrial furnaces.
    
   Emanuel R. Posnack (circa 1951) 
     When court resumes in the afternoon session, the defendants’ attorney, Posnack, presents his case.
     “Your Honor, this motion is based upon a simple cause of action for patent infringement,” he began. "In such a case there are only two issues: The issues of infringement and validity. In the trial of a patent infringement suit the burden of proof as to infringement is, of course, upon the plaintiff.”
     As Posnack starts into a description of what is necessary to proof a plaintiff’s case in such matters, Judge Conger cuts him short. After a discussion of several similar cases, Conger then asks Posnack a question.
     “Any injunction that I might issue here, would that go beyond October 13th?”
     “It becomes a moot case,” replies Posnack.
     “I  can only grant an injunction for a short time,” states the judge.
     “Up to October 13th. The question of damages is something else,” Posnack points out.
     As the judge pondered the usefulness of such a short-termed remedy, Posnack begins his attack on Scheiman's arguments by noting that there has been not, “…one word describing or comparing the process of the defendants with the claims of the patent, and I know of no other way in which infringement can be proven except by that comparison.”
     "We have a defense of non-infringement, we have a defense of invalidity," he stated flatly.
     Referring to the Bray patents, Posnack continued, "Our defense of invalidity is based upon prior art which we have discovered, which the Examiner (Hanlin) has never seen."
     "And we have even better," he offered, "We have an affidavit from one of the world's most famous cartoonists who swears he uses the very  same process which is described and has used it since 1915. Now, assuming that the affidavit of Paul Terry raises a doubt with respect to validity, I think that doubt is completely dispositive of this motion for a preliminary injunction.”
     But dismissing the validity of Owens' claim was not Posnack's whole case.
     “Up until the spring of this year the printing industry had never been able to produce a 3-dimensional effect from a drawing. Stereoptican pictures are old. Your Honor may remember the old stereoscopic arrangement that was known and practiced at the turn of the century.”
     “That was 3-dimensional,” notes Conger.
     “Yes, but that was taken from a photograph,” Posnack answers. “There were two pictures and when you looked through the stereoscope you saw a single picture giving the effect of real depth.”
     “Yes, my  grandmother had one,” interjects the judge.
     “It dates back as long as my  grandmother’s time,” agrees Posnack. “Now, never has anyone been able as a practical matter to take a drawing on a flat sheet and give a multi-planar effect, as we call it. They tried it. And while they produced some effect, it was impossible to produce it on a mass production basis so that it could be printed.”
     “The defendant St. John Publishing is one of the oldest and most reputable publishing companies in this country,” Posnack states emphatically, but with more than slight exaggeration. Although he had once been a crusading newspaper publisher thirty years earlier, Archer St. John's comic book company had only been in existence about six years.
     The judge inquires, “Are they responsible and reliable?”
     “Most reliable,” assures Posnack, “and I don’t think it is questioned by the plaintiffs. Two of the employees, two of the artists who had been doing work for St. John, had together with another party developed and perfected a new technique for making 3-dimensional pictures for printing purposes. The presented this to the employer of two of them, St. John, and when he saw the process he was impressed, impressed to the point of putting in in, in the last few months, close to a million dollars in the production of publications showing this 3-dimensional effect.”
     “Success was instantaneous and dramatic. I was the attorney for the inventors, as well as for the St. John Publishing Company. I was instructed to file patent applications and to file a petition to make the case a special one so to expedite the consideration. That was done. Patents are now pending. Your Honor knows it takes time for a patent to issue.”
     Posnack continued.
     “In the meantime, since St. John had decided to expedite this, a company was formed, the American Stereographic Corporation, whose main objective was to do this, to help in the perfection of the process, to surevise licensees in their use of the process, and to license others. Licenses were offered to all.“
     Then Posnack makes one of his main points.
     “Included among those who were interested was this very plaintiff Gaines and all his corporations that are producing various publications. At the time they negotiated with the St. John Publishing Company or with American Stereographic Company, they did not know and did not have the Owens patent, which is the patent in suit.”
     The judge seems surprised. “I did not hear that,” he states. Posnack goes on.
     “At the time the plaintiff Gaines was negotiating with the defendants for a license under the defendants’ Illustereo process, Gaines did not have the patent in suit; it was only after the negotiations fell through that he sought and found this patent.”
     “Was he an assignee of the patent?”, Judge Conger asks.
     "He became an assignee either of the whole patent or certain rights," Posnack replied uncertainly, "I did not get that clear."
__________________________________________________________

          FELDSTEIN: ...So we had to buy the patent. We didn’t exactly buy the patent. We bought the exclusive assignment. 

          KUBERT: So he let it go for three bills, huh?

          FELDSTEIN: That’s right. We would have paid a thousand.

__________________________________________________________ 

     “Since that date," Posnack went on,  "the St. John Publishing Company has published many more of the 3-dimensional comics, and intends to publish more, under this new special technique. The plaintiffs have not as yet published a single 3-dimensional book.”

     “What was Gaines offered in his negotiations with the defendants? He was offered, just as every other publisher in the country was offered, a license to practice a secret process under a confidential disclosure. Gaines refused to accept certain of the obligations of a licensee with respect to confidential disclosure and, as I said, the negotiations fell through.”
     "In the motion papers Gaines is now challenging the defendants to disclose the process which they refuse to do. That is the general background picture."
     Posnack was well aware of the disclosure language in the licensing agreement. He wrote it. By signing the agreement, a licensee was legally required to keep the Illustereo process a secret. At the time of this trial, Gaines still didn't know for sure what that process entailed, making the claim that it infringed upon the Owens patent difficult to prove.       
     “This patent has never been adjudicated," Posnack continued,  "For almost 17 years of its entire life it has never been commercially exploited or used. It is known in patent parlance as a paper patent, unknown, unused, unadjudicated. The plaintiffs now wave this piece of paper at the Court and over the heads of these defendants and their proposed licensees and seek to destroy the terrific investment made by the defendants.”
     "We say, in the first place, that because the patent has not been adjudicated, there is no basis whatsoever for a preliminary injunction..." .
     “It seems to me that Mr. Scheiman, plaintiff’s counsel, was a bit naïve when he referred to the very Examiner (Hanlin) who passed upon the patent as proof of the validity of the patent," Posnack suggested,  "I think if an examiner’s word was sacred not a single patent would ever be adjudicated by the courts.”
     Posnack goes on to make the point that Hanlin was unaware of other prior art that would have never allowed issuance of Owen’s patent. Although he doesn’t go into all of the aspects he claims are similar between Owens’ patent and the method used by Paul Terry, he does point to one similarity.
     “All of the affidavits of the plaintiff indicate that the Owens patent relies upon a shifting of the cellophane sheets. First a stack of sheets are placed one upon the other, being transparent, and a picture is taken. Then there is a shifting of these sheets relative with each other. The picture looks different. Another photograph is taken. From that a combined effect is obtained which is 3-dimensional. Mr. Terry swears that that same series of steps which he sets forth in detail has been used by him. I rely upon that.”
     Posnack then confronts the claim of infringement; a claim he dismisses out of hand.
     “There is not a single statement made by the plaintiffs in the affidavits which indicates that anyone has seen the defendants’ process, which is held secret.”
     "Never seen what?", Conger asks.
     "The defendants' process," Posnack replied. "In other words, the plaintiffs charge that the Illustereo process infringes the patent. In order to prove infringement they must know the process. Not one of the affiants has stated that he saw the process in actual use. What did they say? The first group of affiants looked at the final product, which is not the patented process, and deduced it was made by this process, which is utterly inadequate for any suit."
__________________________________________________________

GAINES:  ...It took me about an hour to figure out what I thought I could produce...a way I thought I could produce a book to look exactly like the book you had produced.

__________________________________________________________

     “Two days ago a new witness was obtained by the plaintiffs," said Posnack, in reference to an affidavit sworn to by artist Bill Elder,  "He set forth in detail conversations he had with one of the defendants. Some steps he states he saw. Others he states he heard about. I submit, your Honor, it is utterly unfair and unjust and inequitable to decide a patent infringement suit in favor of the plaintiffs based upon such hearsay testimony without a single bit of evidence to show what the process consisted of.”
     “There is no actual proof of infringement. There is, on the other hand, positive evidence of non-infringement. The patent has never been adjudicated. The patent is invalid by the evidence which we have in our affidavits. For almost 17 years of the patent’s existence it has never been commercially exploited or used. The affidavits on behalf of the defendant American Stereoscopic (sic) Corporation indicate that a patent application for its process has been filed, and in order to expedite the issuance of the patent an application therefore has been made special.”
     “The defendants have been the first to exploit, popularize, and make successful 3-dimensional comics. The plaintiffs are utter newcomers in the field of 3-dimensional publications and are seeking unfairly to profit from defendants’ successful pioneering efforts.”
     “I submit for these reasons that this suit for preliminary injunction be denied.”
     With that, the plaintiff’s attorney Scheiman requested a rebuttal.
     “There is an affidavit before the Court given by Mr. Elder, who states that at the defendants’ offices on a particular day the defendants instructed him in the very process employed by them, step by step, making use of demonstrable exhibits that were employed by the defendants in the production of their first 3-dimensional book, “Mighty Mouse”. There is absolutely no question of hearsay evidence. There is no question of incomplete knowledge. There is direct proof by the defendants to this affiant stating what the process is. There can be no question with respect to identity of the process.”
     Scheiman refuted Posnack's test of validity by first agreeing with its necessity.
     "I agree with Mr. Posnack that it is necessary to prove a valid patent. I think that the proof of that validity is encompassed in the affidavits before this Court. There is no proper attack upon the validity of the patent in any of the answering patents."
     Continuing on, Scheiman pointed out that, "...the prior art referred to in the Terry affidavit is," as he stated earlier, "related to animated cartoons in the two dimensions."
     "Mr. Terry never produced prior to 1936, when the Owens application was filed, any 3-dimensional animated cartoons. I am prepared with exhibits and demonstrable apparatus in this courtroom to show this Court exactly what Mr. Terry has done. I realize time does not permit of any such demonstration at this moment. But I would gladly and happily proffer it."
     Having avoided subjecting the courtroom to a showing of Farmer Alfalfa cartoons, Scheiman goes on.
      "The Terry affidavit is self-serving, confusing in its contents, and by reference to motion picture patents goes clearly beyond the field of art that is in purview here, at least with respect to the process here, which was never employed by Mr. Terry at any time in the production of any of his motion pictures.”
     Scheiman avers the originality of Owens’ patent as, "...a unique process whereby a drawing just like the drawings that were used in the defendants' publications could be traced onto separate cells, photographed so as to create the image as would be seen by one eye; the cells would then be shifted laterally with reference to each other and for a background view so that a photograph could then be taken with the other eye."
     "By use of Mr. Owens' process the two complimentary pictures were obtained. These complimentary stereoscopic pictures are then available for reproduction and were available for reproduction when Owens invented the process.
     To counter Posnack's contention that Owens' invention was merely a "paper patent", Scheiman offered, "There is no doubt that Mr. Owens did not publish a 3-dimensional comic book in the form of "Mighty Mouse. The papers, his own affidavit, indicate that when he in 1936 attempted to exploit his invention, the people whom he approached were no longer interested in printing 3-dimensional material because there was no market for it at the time."
     While making a point comparing Owens’ patent to the pending Illustereo process, Scheiman parenthetically mentions,“…that the defendants have never shown us that application,” in an effort to cast doubt that it had even been subjected for patent consideration.

     Will Elder (seated) and John Severin from FRONTLINE COMBAT #5 (March-April 1952) 

     Scheiman once again asserts that nothing Posnack presented, in any way cast doubt upon the patent’s validity. And secondly, “…the proof of the infringement lies in the affidavits on file, particularly the affidavit of William Elder, served upon the defendants a couple of days ago, in which he states under oath that on June 18, 1953, at the office of American Stereographic Corporation, with an address given in that affidavit, that the defendants, two of the inventors of the so-called process, there having been three in the first instance, instructed this Mr. Elder in the exact technique employed by them to create the “Mighty Mouse” publication.”

     “The affidavit states that they showed him the artwork that was involved in the creation of that “Mighty Mouse”, showed him the several cells, explained to him how they were assembled after they were created, explained to him the unique shifting technique that is the heart of the Owens patent, showed him that the “Mighty Mouse” itself was merely the product of the use of that process and the wonderful invention of printing that has existed for hundreds of years.”

     After once again pointing out that the defendants, “…do not have any patent application that can be granted at any time with respect to the process used by them to create “Mighty Mouse”, Scheiman asserts that, "it will be established beyond any doubt that the defendants have unlawfully, or at least, improperly usurped to themselves profits and rewards of the Owens invention that have no business being in their pockets. While, as I stated before, your Honor, they will be held responsible for pecuniary damage at the proper time, it is extremely unfortunate that while the defendants are reaping their rewards, the plaintiff is put in the position of having to meet this competition of the defendants."

     "The plaintiff hopes to have its publication reach the newsstands during this month, probably about September 20th, and that is being issued in the wake of a flood of Illustereo products, comic books, five or six in number, the last of which hit the New York newsstands yesterday."

     In actuality, E.C. didn't come close to that September date. Their first 3-D comic, THREE DIMENSION E.C. CLASSICS #1, was released with a Spring 1954, cover date late in 1953.

     "So great is the marketing of the defendants' products that the plaintiff corporations will have a very, very difficult time obtaining any financial return from their substantial investment."

     "I think that on an application for a preliminary injunction the equity should be regarded from both points of view, not from the defendants' point of view alone. If they made a mistake or if they were corrupt, whichever it may be, and made improper use of an invention, they should not be permitted to go along for the ride, they should not be permitted to continue on indefinitely, capitalizing on an improper and immoral act."

     "Bear in mind, your Honor, that these are competing companies. The plaintiff companies were in existence long before the defendant St. John; the plaintiff companies were the pioneer of comic books. These companies were founded by the plaintiff Gaines’ father, and the prestige which the St. John Company is now attempting to achieve through this immoral, improper and illegal act is being denied the plaintiffs. What good will come to the plaintiffs at a trial later on? The damage will have been done by illegal, improper and unlawful distribution of 3-dimensional comic books to a point where it will be virtually impossible, according to the defendants' own statements attached to the motion papers, to sell these books."

     Once again Scheiman cites Kubert's comments in the WRITER'S DIGEST article.

     “The defendants said that by October or November it will be practically impossible to do any business in that field. This is a passing fad, a passing fancy. The plaintiffs are being denied it merely because they proceeded in an honorable, in a proper, in a lawful manner to operate under the patent of an inventor who licensed them for that purpose.”

     “These defendants have on color of right; they have no title; they have no authority; they are usurpers; they are newcomers; they are the ones who have achieved and are achieving the fruits and labors and rewards that belong to Owens and his licensees.”

     “Mr. Posnack suggests that every one of the comic book publishers in the City of New York or elsewhere was given the opportunity to have a license. The fact remains, Judge, that St. John is the only one who has a license under this so-called Illustereo process.”

“Nobody else took a license because of the terms. I suggest to your Honor, as the moving papers show, that the defendants never intended any such license agreement to be accepted by anybody.”

     With that, the court adjourns to await Judge Conger's decision.

__________________________________________________________

THE DECISION

     On September 30, 1953, Judge Conger handed down his decision. What follows is an abridged version.

This is a motion for a preliminary injunction restraining the defendants from making and distributing three-dimensional comic books or magazines produced by a certain "3-D Illustereo" process upon the ground that said process infringes United States Letters Patent No. 2,057,051 issued to plaintiff Owens on October 13, 1936.

The plaintiffs have filed various exhibits as well as a number of affidavits in support of their motion.

According to the affidavit of the plaintiff Gaines, the corporate plaintiffs are well known publishers of comic books and he is well acquainted with the efforts involved in the production and knowledge of stereoscopy and the aspects of its production through the medium of photography; he is the assignee of the Owens patent and has made a study of it. He sets forth his analysis of the patent which is entitled "Methods of Drawing and Photographing Stereoscopic Pictures in Relief"...
 
The Owens patent technique embraces according to Gaines the following production steps:
 
"(a) analyzing the drawing and breaking it down into the desired number of planes;
 
"(b) copying each plane, either by hand or photographically, on to a separate sheet or transparent cell (acetate, celluloid or the like) or a combination thereof, and, in the case of transparent cells, opaquing the areas covered with white where and if desired;
 
"(c) superimposing the sheets and/or cells in register to simulate the original drawing and then copying photographically;
 
"(d) shifting the sheets and/or cells laterally with reference to the background so that each sheet or cell is shifted slightly more in reference to the preceding one, which shift distances may be varied in amounts and in proportion to each other, and then copying the composite result photographically;
 
"(e) the photographic copies produced or obtained through steps (c) and (d) above described are then reproduced for visual observation.
 
"Reproduction for visual observation is achieved in the following manner: plates are made from each of the two photographic copies referred to in the process outlined above; one being usually inked in red and the other in green, and a printing is then made with the impression of each plate superimposed. When viewed through color filters of the same two colors that the said plates were respectively inked in, a three dimensional effect is obtained through the application of well-known and, concededly (sic), not now patentable principles of `stereo-anaglyph' viewing."
 
He reminds the Court of the "3-D" craze and the profits to be reaped, and he describes the efforts of the defendants in marketing the "World's First Three Dimension Comics" under a so-called secret "illustereo" process for which patent application is pending; he further describes his negotiations with defendant for a license to employ the process in his own publications and his refusal to accept the same because of the conditions imposed therein; he charges that the defendants actually never had intention of licensing anyone other than St. John Publishing Company and that defendants are out to corner the market in 3-D comic books; he cites an announcement in a trade magazine by one of the defendants and inventors, Kubert, to the effect that there will be an immediate but short-lived market for 3-D comics and "then it will be all over"; the announcement also refers to the problem of acquiring glasses for the comic books because of the limited supply of acetate in New York; this points up the difficulty because it takes Gaines' companies several months to produce a 3-D comic book.
 
Mr. Gaines' affidavit further goes on to relate his discovery, during the course of the license negotiations, of Owens' patent; that he became absolutely convinced the defendants were employing the Owens process; and he is equally convinced the defendants infringe the Owens patent since the "naked eye tells the story"; he studied defendants' work and can't think of any method other than Owens' that might have accomplished the result.
 
Mr. Gaines' affidavit winds up by "challenging" defendants to admit or deny the use of certain practices in their production and pleads the necessity of the relief sought, because of the defendants continuing publication despite full notice of plaintiffs' rights, the limited (in time) market, the limited source of supplies created by defendants' activities and the fact that the Owens patent expires October 13, 1953.
 
The affidavit of plaintiff Owens recites, among other things, his invention, his belief that defendants infringe, his failure ever successfully to promote the patent, or to receive one penny from it, his experience as an inventor, his introduction to the defendants' claimed infringing production, the receipt of a visit from plaintiff Gaines and subsequent conversations with the latter after which he assigned his patent to Gaines, his notification to defendants of infringement and various replies. He has no doubt that defendants use his technique in their productions, for the same reasons Gaines gives.
 
One Feldstein, a commercial artist and employee of the plaintiff corporations, also expresses the opinion that "only one of the methods invented, taught and detailed in the Owens patent could have been used in the production of that (`Mighty Mouse') comic book ****
 
Further, one George Hanlin files an affidavit in support of the application. Hanlin is no less than the Government patent examiner, now retired, who examined and allowed the Owens patent in 1936. It is his opinion that the Owens patent was and is valid in every way. This opinion results from a refreshed recollection and further study by Mr. Hanlin. He is further of the opinion that if defendants use certain processes in producing their comic books, they infringe the Owens patent.
 
One Elder, a commercial artist, formerly a free-lancer, but now employed by the plaintiff corporation, relates that he visited the offices of American Stereographic Corporation in June of this year and that defendants Kubert and Norman Maurer explained to him the process by which defendants' comic book "Mighty Mouse" had been produced. He is of the opinion that it "is undoubtedly the process invented and taught by Mr. Owens."
 
One exhibit is a transcript of a tape recorded interview between defendant Kubert and plaintiff Gaines and plaintiff corporations' employee Feldstein at Gaines' office in August of this year. It appears that Kubert was invited to Gaines' office by Gaines and/or Feldstein for a little chat and, unknown to Kubert, the conversation was tape recorded — 70 pages in all.
 
I read the entire transcript. Without giving consideration to its propriety or admissibility — plaintiffs have filed a memorandum in support of the submission — I can only conclude that it completely establishes that Kubert was innocent of any wrongdoing in connection with Owens' patent and the publication of defendants' 3-D comic books. Further, I regard it as worthless in establishing any impropriety on the other defendants' part. The conversation consisted mainly of Gaines' and Feldstein's relation to Kubert of what they had learned, suspected, speculated and otherwise. Kubert was astonished by some of the revelations but he was unaware of wrongdoing on his own part or anybody else's, except possibly, if what he was told was true, a certain lawyer's part.
 
The defendants have filed affidavits in opposition to the application.
 
Leon (Leonard) H. Maurer, general manager of the defendant American Stereographic Corporation, states that he, in conjunction with Norman A. Maurer and Joseph Kubert, invented the process whereby defendants produce 3-D comic books; that a patent has been applied for along with a petition for "special" attention in order to expedite the application; that defendants sought to license Gaines and his companies but the latter would not agree to the conditions in connection with secrecy of the process; he states that Owens' patent has no relation to defendants' process; he is of the opinion, after study, that the Owens patent is and always was invalid in view of the prior art which he purports to cite; that the St. John Publishing Company has invested three-quarters of a million dollars in the project and the plaintiffs have yet to produce a comic book.
 
Archer St. John relates his part in the production, his substantial investment, the great success of the venture, his belief after investigation that his process infringed no patent, among other things.
 
Norman H. Maurer states that he is a coinventor of the Illustereo process; that it is different than the disclosures of the Owens patent; and that such Owens process is not capable of producing a product of the quality of defendants' comic book.
 
Paul Terry, a producer of well-known animated motion picture cartoons, states that he has used, since 1915, a process relating to the creation of 3-D effects from a drawing which process is described in many old patents, which he cites.
 
I believe I have given the highlights of the various affidavits and I have considered the exhibits.
 
I am convinced that the plaintiffs have not made a case for the relief sought.
 
I shall assume for the purposes of this application that the Owens patent is valid.
 
It is plain from all the circumstances, however, that defendants' infringement of the Owens patent is not reasonably clear, if at all.
 
Only Elder among the affiants in support of the application has any knowledge of defendants' process. Gaines and others cannot think of any method other than disclosed in the Owens patent to do the job. Hanlin says in effect that if the defendants use the Owens method they infringe the Owens patent.
 
Elder's affidavit remains practically unanswered. Of course, in general the defendants deny using the Owens patent, aver that the Owens method has no relation to their own and have their own invention for which they seek a patent. But they do not deny that their method was explained to Elder nor do they counteract Elder's opinion that it is the Owens method. This circumstance along with others raises a suspicion that the defendants may have appropriated Owens' work. I do not, however, regard it as clear proof of infringement in view of defendants' denials and averments, and particularly since defendants have seen fit to file their own "invention" in the patent office.
 
This doubt coupled with the fact that the plaintiffs will not be irreparably damaged by defendants' continued production compels me to deny this application. There appears to be no question that the defendants are financially secure and well able to compensate plaintiffs if and when they are successful in this suit. It may well be three years before it reaches trial, yet the patent will be in the public domain within a month. Even assuming that the defendants saturate the market within a short time, it may not be said that they are sole contributors to this circumstance since it appears that at least one other company is in the field.
 
The application is denied.
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THE AFTERMATH

     With the Sturm und Drang past, when the dust settled, in the end, nobody really won. 
     Despite their loss, Gaines and Feldstein eventually published their two 3-D comics. Despite their win, American Stereographic eventually folded; from lack of customers for their process and the predictable fading of the 3-D fad.
     Although Archer St. John probably lost as much as he had made on this debacle, he didn't go out of business. While his comic book company withered, along with the rest of the industry at that time, his other publishing ventures did well. Right up to his death by drug overdose on August 13, 1955.
     In addition to his continued success as a patent lawyer, Emanuel Posnack wrote several books on economics. His 1956 book, WORLD WITHOUT BARRIERS, proposed a theory of a global economy that presaged events decades later. 
     William Gaines would go on to other battles, including an ill-advised one with the Senate subcommittee investigating juvenile delinquency. A lesser skirmish with a lesser foe was fought by his attorney in December of 1953.
     Massachusetts Attorney General George Fingold, citing the depiction of Christmas in a "pagan" manner and Santa Claus as being divorced, had copies of E.C.'s PANIC #1 pulled off the stands. Gaines' lawyer, Martin Scheiman, decried the "wanton damage" suffered by his client, inflicted by people who had "come to the rescue of a wholly imaginary, mythological creature rarely believed to exist by children more than a few years old."  ⁴ 
     He would go on to represent Gaines in far more serious cases including a copyright infringement suit over the image of Alfred E. Neuman and Irving Berlin's attempt to prevent MAD from using his songs in their parodies.
     Scheiman, who counted Gaines cohort Lyle Stuart and radical publisher Paul Krasner among his clients, would be found dead in the Time-Life Building in 1966, an apparent suicide.
     And Freeman H. Owens, the inventor who Gaines had told Kubert in 1953, "...is so near to death. He’s had seven strokes. He’s an old man…a little old man," continued inventing until he died at age 89 in 1979.
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BONUS MATERIAL DEPT.

     Proving that a little thing like an expensive lawsuit couldn't stop their respective creative juices from flowing, both St. John and E.C. published humorous takes on the 3-D comics saga. Presented here, for not-for-profit historical purposes only, are "The 3-D-T's" from WHACK #2 and the first page of  "3-Dimensions!" from MAD #12. All copyrights are retained by the estate of William M. Gaines and all other respective copyright holders. 

      "The 3-D-T's"   WHACK #2 (Dec. 1953) pg. 1
      pg. 2
      pg. 3
      pg. 4
      pg. 5
      pg. 6

[the following image courtesy of Ger Apeldoorn]

    "3-Dimensions!" MAD #12 (June 1954) pg. 1   __________________________________________________________

¹  All quotes of Martin Scheiman and Emanuel Posnack come from the court stenographer's notes for OWENS v. AMERICAN STEREOGRAPHIC CORP., et. al.,United States District Court S. D. New York, Sept. 1-11, 1953.

²  Zone, Ray, "Leonard Maurer: 3-D Comics Pioneer",  http://www.ray3dzone.com/LM.html
³ Mathieu, Aron M., "3-D Comics Knock 'Em Dead", WRITER'S DIGEST, Aug. 1953.

⁴  "Santa Claus Cartoon Damages Are Charged", PALM BEACH POST, Dec. 28, 1953.

Additional general information obtained from the NEW YORK TIMES archives, HOLLYWOOD ON THE HUDSON by Richard Koszarski, ARKANSAS BIOGRAPHY: A COLLECTION OF NOTABLE LIVES by Nancy A. Williams and Jeannie M. Whayne and the online Google patent search engine.