Kant, the Yellow Kid and Kukuxumusu: Reflections on Copyright Assignment

A few days before the San Fermín festival, world-famous for its “running of the bulls”, the media spread the news of a decree issued by Judge Victoria Rubio, presiding over Pamplona Commercial Court No. 2. This court was the scene of the final confrontation between Kukuxumusu and Mikel Urmeneta, one of the company’s cofounders and the creator of the designs sold by the brand best known for its blue cartoon bull, “Mr. Testis”.

As many readers will recall, design company Kukuxumusu, which had its golden age in the 2000s, started the second decade of this century in the midst of a serious crisis: shops were closed, there were layoffs, and it eventually proceeded to sell most of its shares. The purchaser was Navarran designer and businessman Ricardo Bermejo, who not only acquired 66% of the business, but also the economic rights (reproduction, distribution, public communication and transformation) to the “Kukuxumusu Universe drawings” by virtue of a series of assignment contracts.

There was constant conflict between the partners from the start (Urmeneta himself recounted that he ended up snatching the computer away from Bermejo’s table during one of their arguments), so it surprised no one when Urmeneta left the company in early 2016 to establish a new brand: Katuki Saguyaki.

Bermejo then filed a lawsuit against Urmeneta for infringement of intellectual property rights, alleging that Kukuxumusu owns the drawings he was using in products sold by his new brand.

The aforementioned lawsuit was spearheaded by a contemporaneous request for precautionary measures which was addressed in a hearing on June 24. Four days later, the decree addressing the request for such measures was issued.

This decree considered the request for precautionary measures filed by Kukuxumusu’s lawyers, and agreed to the precautionary suspension and prohibition of the reproduction and transformation of the so-called “Kukuxumusu Universe drawings”. To determine which drawings this includes, the resolution refers to the assignment contracts we mentioned above. Furthermore, it agreed to the precautionary removal and retention of products incorporating the described drawings.

The decree justified granting the measures because “the drawings used by the co-defendants in order to incorporate them into products sold via the Katuki Saguyaki website and other platforms are copies or transformations of those that were assigned exclusively to the plaintiff”.

Does this mean that Urmeneta can no longer use the drawing style that has become famous under the Kukuxumusu brand? What will happen to the famous blue bull, “Mr. Testis”? Can Urmeneta use him in new creations for Katuki Saguyaki?

This is not the first time that such a matter has reached the courts. The debate on the limits of copyright assignment dates back to the origins of satirical cartoons (a genre which is present in numerous Urmeneta drawings).

Between 1894 and 1895, American cartoonist Richard Felton Outcault (1863-1928) published a series of satirical cartoons in the magazine Truth. Their success led press magnate Joseph Pulitzer (1847-1911) to become interested in his work, so he began publishing the cartoons on a page of the Sunday edition of his New York World newspaper called The World’s Funny Side. They were so successful that Pulitzer decided to publish them in color. The series was entitled “Hogan’s Alley”, and in it, Outcault introduced a series of characters typical of New York slums. One of them, a boy named Mickey Dugan dressed only in an enormous yellow nightshirt upon which his replies were written, quickly became a public favorite known only as the “The Yellow Kid”.

Competition in the press was fierce at the time, and another media magnate had his eye on Outcault’s creation: William Randolph Hearst (1863-1951). Hearst hired the entire staff of Pulitzer’s The World’s Funny Side to work on the launch of a Sunday supplement named American Humorist. Naturally, the matter ended up in the courts, which ruled that the “Hogan’s Alley” series belonged to Pulitzer’s newspaper, but the characters (including “The Yellow Kid”) belonged to their creator. This ruling led to the character appearing in both Sunday newspapers at the same time, as Pulitzer hired another cartoonist to continue Outcault’s work. What is now known as “yellow journalism” gets its name from the publishers’ war over the character.

As Bercovitz Álvarez eloquently states, you cannot acquire an author’s work and demand “that they forget” it. First, because moral rights are inalienable (article 14 of Spain’s Intellectual Property Law), and second, because not even the economic rights to a work may be fully transferred. Examples include the moral right to withdrawal (article 14.6 IPL) and the necessity to obtain the author’s consent to transfer their rights (article 49 IPL).

The courts will not have to decide who is the creator of the so-called “Kukuxumusu Universe drawings”. No one questions Urmeneta’s authorship. The transfer of economic rights does not imply the transfer of the moral right to authorship of the work. Nor is it disputed who owns said drawings. What is at issue is whether Urmeneta has infringed upon the rights he ceded to his former company by selling designs included in the “Kukuxumusu Universe drawings”. What causes concern among artists and graphic designers is whether transferring the economic rights to one of their creations implies, in practice, “forgetting” the style used to depict said creation. But let’s not forget “The Yellow Kid”. The courts ruled that the series belonged to Pulitzer’s tabloid, but its characters and creations belonged to their creator.

Urmeneta has no doubts regarding his authorship. In an illustration published on Twitter, his blue bull tells him, distraught: “Mikel, I’ve started going to a psychiatrist, sometimes I have doubts about whether I’m your creation or an adaptation from the universe you created”. “You’ll always be my creation,” Urmeneta responds, his statement echoing the old Kantian maxim that “a work of art cannot be separated from its author”.