A Teenie Weenie amount of ‘Goodwill’: Cross-media character brand merchandizing in the 1920s

Introduction

On 28 January 1921, in the midst of negotiating a merchandizing license for toys based on his popular Teenie Weenies newspaper cartoon with Geo. Borgfeldt & Company, William Donahey requested that in addition to the 5 percent royalty he had already been promised on all net profits the licensee earned, the toy distributor also pay an advance sum for the exclusive rights to use the property, explaining ‘with the particular subject that has originated with me and the status which the same has now attained in the popular mind, there is something more passing to you than the mere right to manufacture, sell and distribute the particular lines of commodities which you have in mind. I refer to what might be considered a certain good will attached to this subject of the Teenie Weenie characters as well as the term itself’ (Box 1: Folder 2; emphasis added). ¹ In other words, Donahey reasoned that since Borgfeldt would benefit by associating its toy lines with the positive reputation already established by the cartoon with would-be consumers, the right to exploit that ‘goodwill’ could be assigned a dollar value separate from the right to use the Teenie Weenies logo and character likenesses on various products. Borgfeldt saw it differently.

Though the cartoonist and toy distributor had been in nearly daily contact leading up to Donahey’s request, Borgfeldt not only took six weeks to respond, but when it did, Assistant Treasurer Geo. Pfeiffer bluntly dismissed Donahey’s notion that ‘goodwill’ could be assigned compensatory value, stating, ‘we would not, under any circumstances … pay any general flat consideration in advance or otherwise for the mere right to use Teenie Weenies, or their presumptive value and any goodwill connected therewith. The only reason they interest us at all, as a commercial proposition, is the fact that they have some publicity, on the strength of which we hope, with hard work, to get some business’ (11 March 1921; Box 1: Folder 2). While Pfeiffer admitted that the cartoon’s existing popularity was attractive, he essentially reframed the concept of ‘goodwill’ as derived from Borgfeldt’s labor in producing and distributing quality merchandise bearing the Teenie Weenies name, not from the property’s established reputation. Since Borgfeldt would be doing all the work in extending the Teenie Weenies beyond the newspaper page – a misnomer, as Donahey was expected to do all the design work gratis as part of the arrangement – Pfeiffer reasoned that it was really the licensee who was helping Donahey by associating the property with established product lines already popular with children.

The exchange I’ve just recounted is indicative of how uncertainties amongst licensors and licensees in the early part of the 20th century over the value of character brands – and perhaps more importantly, who was responsible for ensuring consumer goodwill for merchandise based on these properties – influenced negotiations over the transformation of intellectual property (IP) into cultural commodities and raised questions about whose creative authority ultimately warranted an investment of monetary and cultural capital. Donahey’s struggles point to the significant – and often unsuccessful – discursive labor that went into cultivating investment amongst potential clients in the supposed value-added possessed by entertainment-based character licenses and the struggles IP owners had in asserting creative authority over licensees at a historical juncture prior to ‘the brand’ eclipsing ‘the product’ as the ultimate source of value. Indeed, correspondence between Donahey and Pfeiffer almost suggests an inversion of contemporary dynamics between IP owners and clients when it comes to establishing authority over and value in cultural commodities. Borgfeldt treated Donahey as an ‘artist-client’ – a literal designation the company included in all of its contracts – rather than submitting to the now taken-for-granted notion that licensees should be beholden to the creative and economic stipulations of IP owners.

My goal, however, is not to suggest that somehow the world of the 1920s was topsy-turvy. Rather, Michel Foucault (1972) reminds us that discontinued practices open up counter-historical possibilities that reveal points of historical rupture rather than natural progression. In recognizing a reversal of roles between Donahey and Borgfeldt, my hope is to denaturalize assumptions about how IP accrues value and where the locus of authority resides by pointing to alternate configurations that were equally plausible.

The exchange between Donahey and Pfeiffer reveals the tentative and tactical discursive processes through which the occupational purviews and functions of licensors and licensees were defined and refined, promulgated and challenged during the first two decades of the 20th century. Much as Carolyn Marvin (1990) and Lisa Gitelman (2006) have argued that all technologies were not only once new, but also that their dominant meanings and usages crystallized only through discursive struggles amongst various actors vying for definitional power, I posit that job categories do not simply get created, but rather, that occupational purviews and functions are negotiated in relation to the material conditions of their practice. Similarly, Paul Du Gay and Michael Pryke (2002: 8) assert that ‘techniques of “economic management” do not come ready-made. They have to be invented, stabilized, refined and reproduced.’ In other words, I argue that discursive exchanges such as the ones between Donahey and Pfeiffer not only produced a particular set of understandings about the value of IP in the 1920s, but they also served as means of ‘cultural sense-making and self-ethnography’ through which licensors and licensees struggled to assert and define their occupational purviews and identities (Caldwell, 2009: 201).

Ultimately, I argue that neither the Teenie Weenies’ value as IP, nor Donahey’s creative authority as licensor nor Borgfeldt’s as licensee preceded the negotiations between these two parties, but rather, that they were established through the tactical discursive exchange of what John Caldwell (2008) labels ‘trade stories’ designed to establish each party’s ‘career capital’. These trade stories were, in turn, inspired by the particular socio-historical and industrial contexts in which they were told; in this case the post-First World War pre-Depression era children’s market and its construction of an imaginary child consumer. These trade stories provided the fodder through which industry lore about what sort of children’s culture ought to be produced and how best to monetize it were established and also whose vision for generating cultural commodities ought to be adhered to. Whereas historians of consumer culture have repeatedly focused on how the social construction of the imaginary child consumer has shaped particular marketing and production practices (and vice versa) (see Kline, 1995; Seiter, 1995; Cross, 1997; Jacobson, 2004; Sammond, 2005), very little scholarship has focused on how such discourses have been instrumental to the internal negotiations amongst those jockeying for control over the circulation of cultural commodities targeting children (licensors and licensees; creators, manufacturers, distributors and retailers), legitimating certain forms of cultural and creative authority over others while also helping to establish a lingua franca amongst different occupational communities.

Paul Du Gay (1998: 7) has suggested that scholars must pay closer attention to the ‘culturalization of economic life’, wherein ‘Processes of production are themselves cultural phenomena in that they are assemblages of meaningful practices that construct certain ways for people to conceive and conduct themselves in an organizational context.’ Celia Lury (1996), Keith Negus (1998, 1999) and Liz McFall (2004) have all emphasized the mutually constitutive relationship between culture and economics in determining media products and practices, whereby commonsense notions of profit and compensation (not only how to attain them but also what gives one the right to earn them) are repeatedly (re)shaped by ever-shifting social values as much as by changing structural conditions. While most of these scholars have focused on contemporary ‘culturalization’ processes, McFall (2002) has challenged the field to investigate how advertising personnel and other cultural intermediaries understood their roles as participants in the popularization of cultural commodities at earlier junctures. In part, this article seeks to answer McFall’s call for more historical work on the early negotiation and formation of occupational roles and identities amongst cultural workers by focusing on those involved in developing the children’s toy market in the late 1910s and early 1920s. ²

Finally, the interactions between Donahey and Borgfeldt reveal how the concept of ‘goodwill’ was understood and given meaning through discourse in an era prior to the codification of secondary meaning into trademark law. Secondary meaning, which would recognize that consumers associate trademarked brand names, images and logos with a particular producer rather than its underlying products (i.e. that the brand name ‘Coca Cola’ is associated with the Coca Cola Company, not just the soft drink produced by it), only gained legal standing in 1946 with the passing of the Lanham Trademark Law revision. In practice, this would lead to the popular acceptance amongst licensors and licensees that brands maintain their ‘goodwill’ with consumers across product lines. Early debates over what constituted ‘goodwill’ would not only have profound effects on Donahey’s legal authority over the Teenie Weenies as a brand, but also on how the courts and corporations would eventually come to recognize managerial stewardship – not creative or artisan labor – as essential to establishing and maintaining brand equity. As such, the interactions between Donahey and Pfeiffer not only reveal a great deal about the industrial and legal roadblocks that IP owners encountered in the first two decades of the 20th century in trying to manage the extension of character brands across media and merchandising platforms, they also demonstrate how the production of knowledge about ‘goodwill’ through discourse profoundly influenced how juridical and corporate power would be exercised.

Following a brief elaboration on the key players involved in merchandizing the Teenie Weenies, I turn to analyzing correspondence between Donahey and Pfeiffer in which the brand’s value as well as the authority of both licensor and licensee were negotiated. I read these documents symptomatically, situating their exchange of discourse within its particular socio-historical context while also identifying tensions and struggles over definitional power when it came to managing how the Teenie Weenies were to be extended. In the last third of the article, I assess how ambiguities surrounding the concept of ‘goodwill’ contributed to Donahey’s legal and business misfortunes. In the conclusion, I return to the question of role reversal in managing the extension of character brands in the early 20th century in order to gesture at how licensors eventually gained the upper hand over licensees when it comes to claiming authority over the ‘goodwill’ invested in character brands.

The key players

William Donahey’s Teenie Weenies was a newspaper cartoon published by the Chicago Tribune from 1914–70 (though with a near 17-year hiatus from 1925–41). Partly inspired by Palmer Cox’s The Brownies (1881–1918), Donahey’s creation featured a village filled with Lilliputian-sized characters and derived much of its humor from their interactions with everyday objects such as boots and thimbles significantly larger than themselves. Until 1923, the Teenie Weenies appeared as a single panel half-page cartoon first published in the Tribune’s women’s section and then in its ‘magazine’ section. The cartoon was very consciously promoted to mothers as gentler than the more violent and tawdry Katzenjammer Kids. Indeed, Donahey went to great lengths to distance his creation from the supposedly lowbrow comic strip format, going so far as to cancel his contract with the Tribune when the publisher insisted that he permanently convert the Teenie Weenies into a multi-paneled strip in 1924. ³

In spite of the fact that the Teenie Weenies have largely been forgotten today, its value to the Tribune can be evidenced by the 1919 contract Donahey signed, which not only paid him $75 a week, but also allowed him to work from home and exclusively on the Teenie Weenies, all in exchange for one weekly half-page cartoon. By 1923, Donahey’s salary had doubled, though his workload remained the same, and he was guaranteed 50 percent of the gross receipts the Tribune received for syndicating the Teenie Weenies. Donahey also retained the non-publishing rights to his creation (though he was expected to share profits earned from merchandizing with his publisher), and by special agreement with the Tribune, was also allowed to create original published works featuring the Teenie Weenies so long as these did not appear in rival newspapers or magazines.

Controlling the rights to the Teenie Weenies allowed Donahey to selectively pursue licensing and merchandizing opportunities, which included a series of school primers and illustrated short stories, a Teenie Weenies Music Book for Piano, the performance rights to create a ‘Teenie Weenies Walz’, a children’s clothing line featuring embroidered Teenie Weenies characters, and a very lucrative promotional sponsorship with Reid, Murdoch & Co. that featured the Teenie Weenies in advertisements and on container labels for its Monarch canned food lines. Donahey also entered into a long-term relationship with the Borgfeldt toy distribution company, which he believed would eventually pave the way for a series of Teenie Weenies moving pictures based on an anticipated line of dolls and other children’s playthings. As Donahey explained to Tribune editor James Medill Patterson, ‘it is through the dolls that I expect to make the moving picture end pay, as I have a scheme for picturing them which I have been told can be easily handled’ (30 June 1917, Box 1: Folder 1).

Though Donahey never revealed the details of his grand scheme (and, indeed, he also never successfully optioned the Teenie Weenies as a motion picture), what is evident is that he saw toys and other children’s ephemera as gateways to other media extension opportunities precisely because they helped establish the Teenie Weenies as a habitual part of children’s lived daily experiences, building sustained interest in the property in ways that the ephemeral newspaper cartoons alone could not. While comic strip historian Ian Gordon (1998) notes that the popularity of many early 20th-century characters such as Buster Brown, Little Nemo in Slumberland, and The Gumps resulted in their quick adaptation as toys, motion pictures and stage plays, Donahey’s ambitions reveal the extent to which such product extensions might be understood as part of an interwoven strategy for building cross-media brands and managing nascent brand communities that might follow their favorite characters across platforms long before the advent of media conglomeration and cultural/economic convergence.

Geo. Borgfeldt & Company first began operating out of New York City in 1881 and by the turn of the Century had already established a solid reputation as an importer/distributor of high-end children’s dolls, mostly from Europe. In the 1910’s, the company also began to sublicense merchandise to European manufacturers, meaning that it acquired both the manufacturing and distribution rights to certain products and properties, but commissioned other companies to produce the actual merchandise, acting as an intermediary between creator/artist and manufacturer. Though the company would experience its greatest success in the early 1930s when it became the exclusive distributor of Disney bisque dolls and mechanical toys, by the time Pfeiffer began negotiating with Donahey, the company had already been phenomenally successful at merchandizing Kewpie dolls, toys and novelties based on Rose O’Neill’s creations, for which they held an exclusive all-encompassing license. Significantly, Geo. Borgfeldt & Company would experience a radical shift to its business model in the late teens and early 1920s as the European manufacturing industry it relied so heavily upon recovered from the physical destruction and ensuing economic inflation that followed the end of the First World War. Meanwhile, the newly established Toy Manufacturer’s Association of America exploited anti-German sentiments to lobby the US government to impose a 75 percent tariff on all German imports. All this necessitated that Borgfeldt invest resources into US manufacturing as well as into distributing inexpensive children’s toys that still appealed to middle-class sensibilities and tastes.

According to Gary Cross (1997) and Lisa Jacobson (2004), the first decades of the 20th century saw the emergence of two seemingly contradictory yet interwoven ideas about children’s play culture. on the one hand, the arrival of name brand fantasy toys that indulged both children’s imaginations as well as parent’s newfound sentimentality toward children; on the other hand, a virulent child-improvement ethos that advocated for educational toys that taught creativity and skill-development and would help bring the classroom into the playroom, in the process providing a proactive parental prophylactic against the perceived insidiousness and moral bankruptcy of mass culture.

Lisa Jacobson (2004) and Nicholas Sammond (2005) both demonstrate how producers of children’s culture repeatedly asserted that, with the right guidance, commercial products could prove beneficial to childhood development. As Jacobson (2004: 10) notes, although the emerging consumer culture was often lamented as destroying Victorian notions of childhood innocence and upsetting traditional family hierarchies, some experts believed that its ‘ethos of salesmanship and enticement’ could also be harnessed by parents and educators to prepare children for successful integration into modernity. These experts also believed that media and other forms of popular culture could, in the right hands, be valuable character-building tools for teaching children how to imaginatively navigate consumer culture without sacrificing their moral compass. Or, as Nicholas Sammond (2005: 2) asserts, ‘arguments about regulating harmful media gave rise to arguments for media beneficial for the development of children into socially productive adults’.

Citing cultural historian Warren Susman, Ian Gordon (1998) argues that the early 20th century was characterized by an ongoing cultural struggle between notions of character-building and a growing fascination with a celebrity culture built on personality, with comic strip characters serving as bridging agents from the former to the latter. The successful toy manufacturer was one who could draw from popular cultural forms such as comic strips while tempering their harmful effects by channeling their personalities in order to sell character-building playthings. Toy manufacturers often looked to license properties that already had positive reputations with both parents and their children in order to align their wares with prevailing child-rearing discourses of the day. Within this environment, a partnership between Donahey and Bordfeldt seemed like a surefire success.

But the forms this collaboration would take, as well as the mutual investment in one another’s contribution to this process, first had to be established through a series of tactical exchanges designed to establish both the Teenie Weenies’ value as a cultural commodity as well as Donahey and Borgfeldt’s career capital. The back and forth between Donahey and Pfeiffer often produced tangled understandings of what the Teenie Weenies’ value was as well as how to monetize it, which were in turn inseparable from one another.

Establishing and authorizing the Teenie Weenies value

Marketing the Teenie Weenies brand

Pfeiffer also argued that any sales difficulties Borgfeldt encountered were partly the result of the poor publicity the Teenie Weenies cartoon received. Pfeiffer’s concern over how the cartoon was publicized point to the contractual limitations of Donahey’s working relationship with the Chicago Tribune. They also point to the discursive ambiguity over how ‘goodwill’ was established for entertainment brands during this period.

Throughout their correspondence, Pfeiffer repeatedly stressed to Donahey that ‘publicity through every available channel is your cue’ (19 February 1917; Box 1: Folder 1). And, indeed, Donahey repeatedly sought to convince would-be licensees to work together to cross-promote Teenie Weenies products. But in key ways, Donahey’s ability to publicize the cartoon was hampered by the Chicago Tribune’s business model during this era. Unlike many New York-based newspapers, which had invested in developing syndication operations in order to sell their comic strips nationally, transforming certain strips into ‘shared national cultural artifact[s]’ (Gordon, 1998: 41), the Chicago Tribune was primarily interested in generating publicity for its own publications. Comic strips and cartoons were an essential part of the Tribune’s marketing, but they were largely intended to increase sales of Chicago Tribune newspapers, not provide an ancillary market for Tribune content.

Indeed, Donahey’s 1920 contract explicitly forbade him from publishing his cartoons in other newspapers or print publications, including magazines (an exception was made for the school primers). He was also forbidden from using his Teenie Weenies characters as sales agents in product advertising that might appear in non-Tribune publications. As such, the Teenie Weenies were not widely known in the USA outside of the Midwest, whereas many East Coast cartoons were nationally recognized and, in turn, more easily marketable as branded toys and other merchandise. Lamenting the lack of a sustained East Coast presence for the Teenie Weenies cartoon, Pfeiffer exclaimed:

I am sorry … that we will not yet have you in the East, where I hope you will still some day find a wider and perhaps more profitable field for your ability … The East reaches out over our entire country toward the West, but the West and the Middle West do not seem to take so kindly to the Eastern ways. (20 June 1923; Box 1: Folder 3)

Since the Chicago Tribune also owned a sister newspaper in New York City, The New York Daily News, with which it shared resources, many Tribune strips did find readership in the New York City market. Yet Pfeiffer also saw the sensationalistic and tawdry reputation of the Daily News as contributing to the Teenie Weenies image troubles with the right class of consumer: ‘You may suffer … from the Teenie Weenies coming out in The Daily News, because frankly, the general tone and subject matter of its illustrations are too much like Police Gazette [a popular and lurid tabloid published from 1842–1977] sensationalism to find ready access to the homes you would like to have reached by the Teenie Weenies’ (8 February 1923; Box 1: Folder 3). Pfeiffer lamented that toy dealers catering to the types of consumers that read The Daily News ‘sniff contemptuously at such high-brow stuff as the charming Teenie Weenies’ and that Donahey therefore needed to find ways to present his characters to concerned parents through other venues, such as Good Housekeeping and Ladies Home Journal, which were at the time off-limits to him (8 February 1923; Box 1: Folder 3).

Though Donahey’s situation would change in 1925 (see next section), Pfeiffer’s dual concerns that the Teenie Weenies received neither enough publicity nor enough of the right kinds of publicity touches upon the paradoxical understanding of ‘goodwill’ that shaped early brand extension strategies (and arguably continue to do so today); namely that building brand reputation amongst consumers required striking a difficult balance between gaining widespread recognition through selective partnerships with licensees. While Pfeiffer regularly warned Donahey not to recklessly hand out licenses that might diminish the Teenie Weenies’ reputation, the distributor also repeatedly pushed Donahey to promote the Teenie Weenies brand as widely as possible. This definitional tension would carry over into the legal arena, where Donahey’s efforts to protect the Teenie Weenies brand from trademark infringement and keep control over how the property was extended across merchandizing platforms hinged upon juridical application of ‘goodwill’.

Defining and defending ‘goodwill’

In 1925, Donahey’s fortunes seemed to turn around. The publicity he had been seeking for his Teenie Weenies characters was dramatically expanded through a lucrative promotional partnership with Reid-Murdock & Company (R-M&C), a national manufacturer of canned goods, who licensed the rights to use the characters on their packaging and in a national ad campaign featured in respected journals such as Good Housekeeping, Ladies Home Journal and The Saturday Evening Post. Donahey was also hired by R-M&C to draw all the artwork for the campaign.

Donahey’s situation was partly altered by changes to the Chicago Tribune’s business strategy beginning in 1924. As Michele Hilmes (1990) notes, in 1924, the Chicago Tribune would begin diversifying its media operations by purchasing a radio station and rechristening it WGN. The radio station was originally intended to promote newspaper sales by showcasing adaptations of Tribune columns and comic strips, but its success in procuring sponsorship for programs such as Little Orphan Annie, and the desires of said sponsors to extend the reach of these programs into new markets contributed to a shift in the Tribune’s operating model, especially in syndicating comic strips, because radio sponsors felt it was imperative that the comic strips first be published in local papers in order to ensure broadcast success.

From 1925 to 1928, the Teenie Weenies were featured on a wide array of R-M&C products, ranging from pickles and canned vegetables to peanut butter and sardines, and Donahey was compensated $48,276.07 for the use of his characters as well as his services as a commercial artist. Importantly, the campaign reinvigorated merchandising interest in the property, including Pfeiffer’s, who wrote, ‘I immediately have thought, therefore, of also capitalizing [on R-M&C’s] advertising for a revival of some Teenie Weenie items by [Borgfeldt]’ (12 November 1926; Box 1: Folder 3).

The success was short lived, however. On 22 May 1925, R-M&C and Donahey would file a suit against the Oconomowoc Canning Company, a Wisconsin-based manufacturer that for several years had been running an ad campaign in which elf-like characters named ‘the Teenie Weenies’ promoted the company’s canned pea product. Donahey claimed that Oconomowoc was infringing on his rights by using the name and likeness of his Teenie Weenies characters without permission and moreover, that they were profiting from the ‘goodwill’ that Donahey had built up in the trade name ‘Teenie Weenies’, leading consumers to assume that it was in fact the comic strip characters Donahey created who were endorsing Oconomowoc’s product. In turn, Oconomowoc counter-sued, arguing that Donahey had no claim to the Teenie Weenies trademark in the area of canned goods and that, in fact, it was R-M&C who was seeking to profit from Oconomowoc’s ‘goodwill’ by passing off their products as the latter’s.

The case hinged on shifting definitions of trademark law and the significance of secondary meaning as an indicator of ‘goodwill’. Briefly, trademark law is intended to protect consumers against confusion and deception created when competing businesses use similar marks, logos, and insignias and, as such, is designed to promote competition by facilitating comparison-shopping. While trademarks must be distinctive in order to be granted legal standing (one can trademark the name ‘Pepsi’ but not the word ‘soda’), the law will often recognize how combinations of common words can take on distinctive meanings for consumers (hence, while the words ‘super’ and ‘man’ are both too common to be granted protection, ‘Superman’ is a recognizable trademark).

Trademark is also intended to preserve the ‘goodwill’ that trademark owners have accrued from consumers by preventing another entity from using the same mark to perpetuate a fraud on the public. Prior to 1947, when the Lanham Trademark Revision was passed by Congress, competing businesses were defined as those engaged in the sale of similar products and ‘goodwill’ was usually correlated with the quality of a particular product. Accordingly, while R-M&C and Oconomowoc were regarded as like-businesses in the canned goods market, Donahey’s Teenie Weenies occupied an ambiguous space, because it was unlikely that consumers would confuse a comic strip with a can of peas. As Donahey would explain the situation to Constance Smith Whitman in 1936, ‘there is no law recognizing or extending literary rights to commercial uses … a literary person cannot protect the “goodwill” and advertising value he might create, unless he manufactures and continues an interstate trade in each article he might want to protect. Of course it is plain to see that all the crooks take advantage of this condition’ (12 March 1936; Box 1: Folder 5).

It was only after Lanham that secondary meaning became the primary means of legally recognizing that particular brand names were capable of carrying meaning for consumers across product lines and that ‘goodwill’ was invested in brand management as much as quality control. Of course, even before the Lanham revision, precedent existed for recognizing popular characters as trademarks. Cartoonists Bud Fisher and Frank King had both already successfully defended their rights to the names of their respective characters, ‘Mutt and Jeff’ and ‘Skeezix’ against unauthorized use in other media and merchandizing. ⁷ In the latter case, King was awarded an injunction against a candy manufacturer already selling ‘Skeezix’ candy bars, which then allowed the cartoonist to license his characters to a rival manufacturer. Donahey felt confident that he would be awarded similar rights.

Quite the opposite occurred though. In April 1928, the State Court of Wisconsin ruled in favor of Oconomowoc’s trademark claim, denying Donahey and R-M&C the right to use either the ‘Teenie Weenies’ label or character-likenesses on their canned good products. While, in part, the court’s verdict was predicated on a narrow definition of trademark that neither took secondary meaning into account nor recognized the ‘Teenie Weenies’ title, logo or characters as sufficiently unique to qualify for common law protection (aside from arguing that the Teenie Weenies title and characters were first created by their client for its canned peas campaign, Oconomowoc’s attorneys also argued that Donahey’s characters were merely generic variations on elves and therefore were not entitled to trademark protection), the trial also revealed the indeterminacy of ‘goodwill’ amongst legal and business interests.

Though it was perhaps plainly obvious that Oconomowoc’s attorneys would argue that ‘goodwill’ resided in the work done by the canning company in producing a high quality product that had gained consumer recognition, Donahey’s testimony and the testimony of the witnesses called to support his claims, including Pfeiffer’s, put forward a variation of ‘goodwill’ that sought to equate artistic reputation and moral stewardship with consumer recognition. In effect, Donahey employed a variation on quality control in claiming that ‘goodwill’ for the Teenie Weenies could be directly correlated with the selectivity he employed in licensing the property. As he would write to a potential witness at the trial, Mr Crawford, ‘I seldom availed myself of the opportunity [to merchandise the Teenie Weenies], due to the fact that many of the schemes were not compatible with the good name of my little folks’ (3 April 1928; Box 1: Folder 4). At the trial, Donahey further testified:

One of the main objects of the thing was to keep it clean and wholesome … For the simple reason that from the letters I received from the fathers and mothers and children they appreciated the wholesomeness of it. The feature was built with the idea of giving wholesome entertainment to small children … From the period of 1914 I had close to two hundred requests for the use of the name Teenie Weenie in commercial enterprises. Almost all of those requests were refused on the ground that I did not like the quality of the article they proposed to turn out under the name Teenie Weenie, or the character of the firm, and refused to do business with them. (quoted in Gerlach, 1929: 10–11; Box 6: Folder 2)

While Donahey’s argument that he purposely limited how the Teenie Weenies were extended conflicted with trademark requirements of the day that a trade name already be established in any given market to be eligible for protection, it also positioned Donahey as employing a moral filter that aligned the Teenie Weenies’ virtues with middle-class parenting sensibilities. Elsewhere, I have noted that only a decade later (and still prior to the Lanham revision), the Lone Ranger, Incorporated (LRI) would successfully defend its rights to the Lone Ranger across trade markets by making a similar appeal to the value of corporate stewardship in overseeing brand extension as essential to the accrual of ‘goodwill’. To some extent, Donahey’s troubles were less about ‘management’ than they were about misidentifying the source of the Teenie Weenies value.

Repeatedly, witnesses called forward spoke effusively about Donahey’s artistic talent and reputation, seemingly arguing that the cartoonist was the true source of the Teenie Weenies’ value. Addressing the appeal of Teenie Weenies branded merchandise, Pfeiffer testified:

because the ultimate purchaser knows Mr. Donahey to be an author and an artist … The consuming public buy these goods because they are familiar … with Mr. Donahey’s literary and artistic work and when his pictures and name appear on any merchandise [they] immediately buy it on account of its obvious connection with the writings and pictures of Mr. Donahey, which they and their children know. (in Gerlach, 1929: 18; Box 6: Folder 2)

This rhetorical maneuver seemed to confuse copyright, which protects authorial rights, and trademark, and arguably undermined Donahey’s case: Oconomowoc was not accused of pretending to pass off its Teenie Weenies as work done or inspired by Donahey. If anything, it feigned ignorance of who Donahey even was.

Yet, this recognition of Donahey instead of the Teenie Weenies as the ultimate source of value was also perfectly in line with prevailing business practices of the day. Donahey’s contracts for the Chicago Tribune regularly recognized that ‘the ARTIST possesses a unique style and peculiar talent, and agrees that his services are of a unique, peculiar and unusual value’ (1923; Box 6: Folder 1), while omitting any specific mention of the actual materials Donahey produced, which in turn implied their interchangeability. As a laborer, Donahey’s value was identifiable in his cartooning style, not his actual cartoons. This allowed the Tribune the ability to reassign cartoonists to different projects while also obscuring the cartoon’s value to the syndicate.

Similarly, manufacturers such as Borgfeldt carefully distinguished between ‘goodwill’ and ‘recognition’ when it came to licensed goods as a means of controlling creative and economic interactions with their ‘artist-clients’. In assigning value to Donahey rather than the Teenie Weenies per se, Borgfeldt could flatter the former’s ego without recognizing the intangible value that the Teenie Weenies brand added to their product lines, which might have required additional compensation. It also allowed Borgfeldt to insist that ‘goodwill’ resided in the care it took in producing quality merchandise, which in turn justified its decision-making authority over product lines. Finally, in recognizing Donahey’s artistic talents, such assertions also denied him the status of brand manager, which might seem like a lessor role, but in the context of IP extension, rhetorically undercut his claims to ‘managerial acumen’ as a form of authorial control (see Santo, 2012).

Unsurprisingly, throughout most of their interactions, Pfeiffer repeatedly positioned Borgfeldt – not Donahey – as the entity best capable of making sound brand extension decisions for the Teenie Weenies, and therefore, also the entity most entitled to profit from the work performed in managing the property’s merchandizing campaign:

We take it for granted that you are letting us feel our way in different directions and will give us the general option to utilize the Teenie Weenies in any of the various lines we are interested in … We feel in dealing with all our artist clients that it is for the common benefit to cooperate as much as possible and not scatter the giving of privileges and rights. There is great advantage in a unified campaign, and as to its results, we naturally feel that we should in a business way get whatever benefit we can from our campaigning, adding any desirable new lines that we could handle in time and not let them go to outsiders who would not have the same interest as ourselves in the whole scheme and will not have spent any labor, time and money like ourselves, in the pioneer work. (14 February 1917; Box 1: Folder 1)

Pfeiffer’s assessment clearly links Borgfeldt’s right to profit from the Teenie Weenies with the distributor’s – not the creator’s – ‘pioneering’ work in popularizing it. Pfeiffer essentially repositions Borgfeldt as the entity cultivating ‘goodwill’ in the property, rather than the entity benefiting from it.

Thus, in denying Donahey’s trademark rights to the Teenie Weenies, the courts upheld a selective interpretation of ‘goodwill’ that preceded the case and had hampered Donahey’s negotiating position with potential licensees throughout this period.

Conclusion

While the partnership with R-M&C offered great possibilities for Donahey to finally attain the publicity necessary for extending the Teenie Weenies into new markets, the denial of his trademark had greater repercussions. Donahey would never again come close to merchandizing the Teenie Weenies. The combination of legal troubles and a decade-long absence from the comic strip pages contributed to the property’s obsolescence, as too did the cultural shift toward favoring brash, spunkier and more ‘realistic’ child protagonists such as Little Orphan Annie, Jack Armstrong, and Terry and the Pirates (not to mention Shirley Temple). By the early 1940s, Donahey would return to drawing the Teenie Weenies for the Chicago Tribune Syndicate, this time in multi-panel form. The strip would be syndicated until 1970, the year Donahey died. Donahey’s struggles to extend the Teenie Weenies brand had little to do with the actual cartoon’s popularity either with consumers or licensees. Rather, Donahey’s difficulties were largely the result of industrial and legal discourses that undermined his creative authority as licensor and narrowly equated consumer ‘goodwill’ with particular products, not brands. While Donahey’s attempts to challenge these prevailing discourses were unsuccessful, they would provide rhetorical ammunition for corporate IP owners in the decades to come.

Though motivated by the particular economic and industrial climate of the early 1920s, Borgfeldt’s efforts to push Donahey in the direction of cheaper toy products would prove fortuitous as by decade’s end inexpensive radio premiums and other giveaway items connected to sponsored children’s programs would dominate the toy industry. In spite of Pfeiffer’s apparent dislike for mass culture, the discursive labor he performed in promoting Borgfeldt’s ability to maintain cultural standards while still distributing disposable branded toys presaged the marketing strategies radio sponsors and marketers would similarly embrace – i.e. that in responsible hands, mass culture could serve positive and productive roles in engaging children’s imaginations (see Santo, 2011). Borgfeldt’s greatest success would come in 1930, when the company briefly became the primary toy distributor for the Walt Disney Corporation, primarily selling bisque figurines and mechanical toys. Ironically, Roy Disney detested the poor quality of Borgfeldt’s merchandise (see Gabler, 2007). He also complained about Borgfeldt’s suspect accounting practices and the interminably long time it took the company to move from product conception to marketing, describing it as ‘great hands to do a lot of talking’ (quoted in Gabler, 2007: 196). Disney’s dissatisfaction with Borgfeldt would lead it to hire Herman ‘Kay’ Kamen as its licensing agent in 1931.

Far from a trivial part of this story, Disney’s shift from Borgfeldt to Kamen points to a significant change in the distribution of power between licensors and licensees. As I suggested at the beginning of this article, in many ways Borgfeldt took on the characteristics of a licensing agent in its dealings with Donahey, whom it treated as an ‘artist-client’ rather than an IP owner to whom it was contractually beholden. Licensing agents such as Kamen would offer their clients similar advice for extending IP as Pfeiffer did with Donahey, but since their earnings came from a small royalty percentage (usually 5-8 percent) from every gross wholesale license they procured (rather than the difference between the manufacturing and the retail price), their interests lay in promoting the brand over the products bearing its image. Ultimately, Kamen’s reputation and career capital depended on how well he promoted the Mickey Mouse brand, whereas Borgfeldt’s was based on the quality of toy bearing its imprimatur.

As such, figures such as Kamen were far more invested in advancing a conceptualization of ‘goodwill’ that resided in the brand as well as in the work done in managing its reputation across product lines. To this end, I (2012) have argued that the work performed throughout the 1930s by licensing entities such as LRI in foregrounding the relationship between managerial acumen and ‘goodwill’ would have significant impact on legal interpretations of trademark law.

In the end, the significance of this case study can be understood at multiple levels. At the micro level, it reveals how Donahey’s efforts to capitalize on his cartoon creation and extend its reach across media and merchandizing platforms were stymied by early 20th-century industrial and legal conceptualizations of where authority over IP resided. It also demonstrates how Borgfeldt & Company sought to manage cultural and industrial changes that required it to rethink its approach to the children’s market. At the macro level, the case study identifies and assesses the industrial and legal barriers to generating cross-media and merchandizing initiatives built around character brands that first needed to be overcome in order for properties such as Superman and Little Orphan Annie to circulate widely in the following decades and become iconic cultural commodities; changes that ultimately led to corporate IP owners displacing artists and authors as brand stewards even as these changes also lessened licensee authority over how IP circulates.

The article also traced the discursive labor involved in challenging and upholding industrial and legal barriers, while arguing that the occupational purviews and functions of licensors and licensees were produced through these discursive exchanges. In focusing on a historical moment prior to the presumptive power of IP becoming conventional industry knowledge, I have simultaneously sought to de-familiarize taken-for-granted assumptions about branding while actively tracing how quotidian exchanges between cultural workers helped shape future conceptualizations of brand management and character licensing.

Thus, at the broadest level, this article has explored how tactical discursive exchanges give meaning to industrial practices taking place within particular socio-historical and institutional contexts and legitimate – or fail to legitimate – the creative authority of different professional communities when it comes establishing the value – both cultural and economic – of branded properties. While prior work has traced the uneasy alignment of cultural and economic logics within industrial settings, their impact on consumer culture and, in particular, popular imaginings of child consumers, I have sought to demonstrate how such discourses are appropriated by cultural workers as part of their negotiation of their positions within the field of cultural production and their assertion of their career capital within a reputation-based system. Though there can be little doubt that Donahey and Pfeiffer’s attempts to legitimate their cultural authority to one another – to cultivate investment in each other’s vision of the children’s market – were rooted in the particular discourses of their day, these types of interactions continue to play essential roles in determining how cultural commodities circulate amongst IP owners, licensing agents, licensees, manufacturers, distributors, retailers and marketers long before they reach actual consumers.