Readers familiar with Robert Crumb's life story from Comics Journal interviews and other biographical accounts may be surprised to learn that the cartoonist has filed suit against Amazon.com over the giant Web retailer's unauthorized use of an image inspired by his "Keep on Truckin'" art to illustrate its online search messages. Virtually unreported in news accounts of the dispute is the fact that the Amazon illustration is not Crumb's art, but an abstract figure striking a pose that apparently imitates a figure from Crumb's Zap panels.

According to Jules Zalon, who is representing Crumb in the Amazon suit, "One need not copy slavishly to commit copyright infringement. The question is whether the average person would believe that Amazon coppied the copyrighted image. Here, I don't think there is much doubt."

It's a well-known part of Crumb lore that he emerged from the 1960s having created some of the most widely seen and iconic images of the underground comix scene, but without reaping any financial reward commensurate with his fame. In 1972, Fritz the Cat and Mr. Natural had been popping up all over the place, but the most ubiquitous Crumb image was based on his "Keep on Truckin'" panels from Zap #1, published in 1968. The images of various upright citizens putting their Big Foot forward, shuffling in goony exuberance as if out of some 1930s animated cartoon, appeared on T-shirts, ads, posters, bumper-stickers, and even the wheel flaps of semi-trailer trucks, all without credit or compensation to Crumb. That changed when attorney Albert Morse launched a legal crusade on Crumb's behalf to track down unauthorized uses of Crumb's cartoons and get the infringers to pay up. The litigations at first paid off, netting more than $100,000 in settlements, in Crumb's estimation.

Morse's Waterloo came in the case of Crumb vs. A&A Sales. Attorneys for A&A found the "Keep on Truckin'" image on a business card used by underground publisher Bob Rita of the Print Mint. Copyright law at the time specified that if the author allowed a copyrighted image to be published in any form without an accompanying copyright notice (©), the author immediately lost his or her copyright and the image fell into the public domain. Crumb told the Journal, "Morse ran over to the Print Mint and started screaming at Bob Rita, 'Crumb never gave you permission to do this card, did he?' And Bob Rita, who was, like, a Samoan cabbage picker who happened to find himself at the head of the Print Mint through various craziness of that period, immediately went on the defensive. And he's a judo/karate kind of guy and does not take shit from any male. So he said, 'Yeah, Crumb gave me permission to do that. Yeah, he did. Ya, ya, ya.'"

Convinced that Rita was lying, Morse pressed Crumb to testify that he had not given permission for Rita's use of the image. "I went to see Rita about it," Crumb said. "All he could do was rage and say, 'Fuckin' son of a bitch Albert Morse, that fuckin' bastard. I'll knock his fuckin' head off.' He hated him so much.... These guys were both big savages."

Crumb was deposed and, when asked if he'd granted permission to Rita, he said he didn't remember doing so. Zalon told the Journal, "The district court said there was no conflict, because Rita said he had permission and Crumb said he didn't remember." A summary judgment was issued that, in effect, dumped the "Keep on Truckin'" images into the public domain.

That much is widely known from prior accounts. What is not well known is that the case was appealed until it reached the Ninth Circuit Court of Appeals, which promptly reversed the lower court's summary judgment Jan. 15, 1977. The basis of the ruling was that Crumb had never really had his day in court. A summary judgment is issued when a judge feels the facts of a case are clear enough without going to trial. If Crumb had given Rita permission to publish the image without a copyright notice, the image was in the public domain and there were no grounds for Crumb's copyright infringement suit. The higher court ruled, however, that it hadn't been proven that Rita had Crumb's permission -- merely asserted. The plaintiff (Crumb) has the burden of proof that a copyright has been infringed upon, but the defendants have the burden of proving their defense -- in this case, that the image was in the public domain.

"Their defense," said Zalon, "was that the image was in public domain, but that was a fact that had to be determined in the crucible of trial."

As it turned out, there was no trial. The Appeals Court hadn't settled the matter, merely reopened it. Officially, "Keep on Truckin'" was neither in nor out of the public domain. But Crumb told friends his deposition had been draining, and apparently sick of litigation, he declined to resume the suit against A&A or pursue any further suits in the matter. According to Crumb, "I said, 'No, let it go, forget it. I don't want to deal with it any more. I'm tired of this whole thing. I don't want to go through any more court hearings, depositions. I don't want to ever see "Keep on Truckin'" again.' Ironically, that thing's going to follow me to the grave."

Dejected by Crumb's abandonment of the suit, Morse ceased practicing law and became a photographer whose work became known for chronicling the underground-comics scene, tattoo artists and Sausalito houseboats. A biographical sketch on a website devoted to his photos notes that Morse's mother had been a paramour of photographer Man Ray and that his legal work included defending the Air Pirates cartoonists against Disney's trademark-infringement suit. Summing up his biggest cases on the site, Morse said, "Both, due to circumstances beyond my control, ended dismally."

Contacted by the Journal, he expressed surprise that Crumb was pursuing the Amazon suit, because the artist had never been interested in the outcomes of his 1970s suits. Before Morse could respond to the Journal's questions about his own suits on Crumb's behalf, he died of complications due to kidney failure Jan. 22.

In the meantime, while Crumb's case was going through its stages of appeal, Congress had been struggling to revamp the Copyright Act, which had been virtually untouched since 1909. Copyrights were due to run out under the two consecutive 28-year terms allowed at that time, and Congress was under some pressure to come up with a bill overhauling the law and providing for a longer term. Given the various interests of authors, corporate copyright-holders and the general public, the matter was much debated, and Congress recessed more than once without having approved the bill, voting instead to extend the old Copyright Act a year at a time. Finally on Oct. 19, 1976, the bill authorizing the new Copyright Act was approved by Congress and rushed to the White House, where Gerald Ford signed it into law in his pajamas an hour before the current year's extension of the old Act was due to expire. The Copyright Act of 1976, though approved before Crumb's case went to the Circuit Court of Appeals, didn't actually take effect until Jan. 1, 1978, the year after the court issued its ruling.

The new Copyright Act was much less strict about copyright registration and, with further revisions to bring U.S. copyright law into agreement with the international Berne Convention, publication without an accompanying copyright notice is no longer grounds for removal of copyright protection, as it was at the time of Crumb's earlier suit. Ironically, if Crumb had pursued the case in 1977, a new trial might well have ruled the image again into the public domain, this time for good.

But it was a whole new ballgame when Amazon's echo of the "Keep on Truckin'" image was brought to the attention of Crumb's agent late last year. The image was used to urge Amazon customers to keep searching when a particular search was unsuccessful. Crumb's lawyers sent Amazon a cease-and-desist letter, and according to Zalon, "They are an honorable company. They stopped immediately."

When the Journal noted the differences between Amazon's figure and Crumb's drawing, Zalon argued, "Substantial similarity is tested by whether an accused work originated independently (no infringement) or was copied from the copyrighted work (infringement). Amazon's character is clearly an outlined version of Mr. Crumb's famous artwork. As far as I am concerned, this is a clear infringement. Access is proven by Amazon's own Web page that clearly states 'Keep on truckin' though books, Music, DVD...' Can any reasonable person doubt that they had 'our' artwork in mind when they created that image, and even used that famous line?"

Asked if settlement negotiations regarding damages had taken place or were continuing between the two parties, Zalon said, "Obviously we talk, but I can't say anything more about that."

In any case, no settlement had been reached as of Dec. 21, when Crumb's lawyers filed suit, alleging, "Defendant has infringed the said copyright by copying the dominant character drawing therein and publishing it on their website as a tool for selling merchandise on its Internet website." The suit also asserts that the "defendant has at all times relevant to the acts set forth hereinabove had, actual and constructive knowledge of the rights of plaintiff, but has proceeded in complete disregard thereof."

Speaking to the Journal, Zalon conceded that Amazon might have thought the image was in the public domain, but said that would have little effect on the outcome of the suit: "That would only affect statutory damages, which are limited to between $750 and $30,000, unless you can prove that the infringement was committed willfully; then it can be up to $150,000."

That amount could turn out to be chicken feed compared to what may be at stake, depending on the how a jury interprets the suit's demand "that the defendants be required to account and pay over to the plaintiff all gains, profits and advantages derived by them from their infringement of plaintiff's copyright, in addition [to] the damages which the plaintiff has sustained by reason of the defendant's said acts."

The Journal asked Zalon how Amazon's profits from using the image to illustrate a search function could be determined. "That's going to be an interesting question," he said. "Normally, you start with the gross profits from the activities in which the infringement was involved. Then you arrive at an 'apportionment' to decide what portion of those profits can be attributed to the infringement. Each person gets their own experts [to weigh in on the question]." According to Amazon's SEC filings, its gross profits for the first third quarter of 2005 totaled $463 million.

At press time, Amazon had not filed a response with the court, and Amazon attorneys and spokespersons declined to comment on the suit. If no settlement is reached, the matter would be tried in the United States District Court for the Western District of Washington in Seattle.

Crumb's doleful prediction that "Keep on Truckin'" will follow him to the grave, as it turns out, may have been a conservative estimate. "Thanks to the Sonny Bono Act [further extending copyright terms in 1998]," Zalon said, "'Keep on Truckin'' will be alive and kicking for at least 95 years after Mr. Crumb dies."

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