Life was good for Gary Blehm in the 1990s.
He’d signed a contract that would allow his art to be sold in chain stores across the country. Jack Caprio, co-producer of comic strip mainstays B.C. and Wizard of Id, personally selected Blehm’s cartoon for syndication. The patriarch of the Sunday funnies, Peanuts creator Charles Schultz, knew Blehm by name as well as the name of his alter ego, Penman.
“I published my first poster in July 1989,” Blehm said. “By Christmas I’d made $5,000. The next year I doubled that. Then it doubled again and it kept doubling.”
Blehm, a longtime Colorado Springs resident, said it was 1977 when he “started to become completely obsessed with this character and the message of optimism.”
In 1989, the artist known for his signature black beret and glasses began drawing posters containing hundreds of Penmen doing the same things he’d done as a child growing up in Colorado. There is a Penman fishing, one playing guitar, one camping, one playing soccer, one skateboarding. Each Penman has the same characteristics; twiggy arms and legs, big outward-pointing feet, four fingers … and that smile.
“I had a story for each design,” Blehm said. “Each design was my story growing up in Colorado. That whole poster tells my story.”
Two decades after those posters made appearances in retail stores everywhere, he was playing his guitar at a bar in Manitou Springs. One of the patrons was wearing a T-shirt bearing a familiar image. It was a character adorned with an oversized half-moon smile, not unlike his own Penman. Below the figure were the words “Life is Good,” Blehm said.
“I go home and it’s 3 in the morning and I can’t sleep,” he said. “I have this T-shirt in my head. I get up and go to the [Life is Good] website and scroll down the page and I see this character with a target for his head. That was from my 1989 poster. I put that character in my comic strip.”
Blehm said he went to his garage where he stored much of his inventory and began pulling posters from boxes.
“I went through the designs on my poster and [looked on eBay for] the company name and the activity,” he said. “I would put in ‘bat,’ and up it would come. I would put in ‘Frisbee’ and up it would come. I typed in ‘hiker.’ Up he’d come. Now my blood is boiling. The hair wouldn’t sit down on my neck. I didn’t sleep for three days. When I finally slept I’d passed out on my couch in my clothes. Sixteen hours I slept. It was devastating.”
Blehm called his contract attorney, who advised him to find a lawyer specializing in intellectual property cases.
In December 2009, Blehm filed a complaint against the Jacobs brothers “alleging four causes of action,” according to the case’s official summary. “The complaint was later amended to allege one count of copyright infringement and one count of contributory infringement, claiming that various Life is Good Jake images infringed Mr. Blehm’s copyrighted works.”
According to the summary, the Jacobs brothers claimed to have begun designing and selling T-shirts in 1989, the same year Blehm’s posters were first mass-marketed.
The Jacobs’ T-shirts were “infused with a positive undertone as a reflection of their beliefs,” according to court documents. The brothers sold T-shirts in and around Boston, where they lived.
“During the 1993 holiday season, the Jacobses sold [T-shirts] from carts in the CambridgeSide Galleria and the Emerald Square Mall, both of which had Prints Plus stores that sold Mr. Blehm’s posters,” the document states.
The Jacobses testified that in April 1994, John Jacobs “drew a sketch of a figure with a red face, wide smile, sunglasses, and a beret. The figure was enclosed in two circles. John hung the sketch on the wall of the brothers’ apartment.”
The documents summarize that the Jacobses hosted a party in August 1994 and solicited feedback on the sketch.
“After a friend stated that the figure in the sketch ‘really has life figured out,’ John Jacobs wrote ‘Life is good’ under the image. They named the image ‘Jake,’ a spinoff of their last name,” the summary reads. “The Jacobses soon made and sold [T]-shirts featuring Jake at street fairs and to retailers. As demand for the shirts increased, John Jacobs added a torso, arms, and feet to the Jake head. Jake was portrayed engaging in simple activities, such as biking, hiking, golfing, and playing soccer.”
According to the summary, the Jacobs brothers testified that they had never seen Blehm’s Penmen before the trial.
“A copyright doesn’t protect ideas. That’s explicit in the statute,” according to Peter Lamire, a copyright attorney and partner with Denver-based Leyendecker & Lamire. “Concepts and ideas are not protected under copyright law. Many people who feel infringed think their concept or idea has been misappropriated.”
Lamire said not many copyright infringement complaints go as far as a verdict because they are such difficult cases to prove.
“A lot of times these cases are dismissed,” Lamire said. “The law does allow for a certain amount of similarity between artistic works.”
Lamire said establishing how much similarity should be allowed can be subjective, and verdicts always depend on the judge or jury hearing the case.
He said copyright cases often follow the now-famous logic of former Supreme Court Justice Potter Stewart who, regarding obscenity, famously stated, “ …I know it when I see it.”
According to Lamire, “There’s a misnomer that if you change ‘x’ percent of a work then you’re home free. There’s no bright-line test. What does it even mean to change 20 percent of a work? When we do opinions for clients, we’ll do a side-by-side comparison. We look at what’s similar and what’s different. We try and establish if the second work utilizes the main focus of the original. … That could be considered infringement. We also weigh how much creativity has gone into the work or whether this is a common theme used by a bunch of different people.”
Lamire said the perceived simplicity behind Blehm’s work probably harmed his case.
“These figures are so rudimentary and basic in nature,” he said. “If you restrict this, then are you restricting the public’s right to draw stick figures? The court will weigh similarities against protecting the public’s right to create artistic works.”
According to court documents, in April 2011, Life is Good moved for summary judgment on three bases.
The Jacobses argued that Life is Good provided evidence “that the accused Jake images had been independently created, thus negating any evidence that the company had copied from Mr. Blehm’s posters. Second, it argued that Mr. Blehm had failed to show that Life is Good had access to the copyrighted works to copy them. Finally, it argued that the Jake images are not substantially similar to the copyrightable elements of Mr. Blehm’s works.”
The case summary states that the district court found the Jacobs brothers could have had access to Blehm’s works prior to Jake’s creation because his posters were sold in Massachusetts, where the brothers resided.
The summary also states, “The district court held that material factual disputes precluded summary judgment on Life is Good’s assertion that the Jake images had been independently created.
“However, the district court granted summary judgment to Life is Good and dismissed Mr. Blehm’s infringement claims because the Jake images are not substantially similar to the legally protectable elements of the Penman images.”
Blehm filed an appeal, and in December 2012, his case against the Jacobs brothers came to a close with the Tenth Circuit Appeals Court ruling in favor of the Life is Good company.
“This is particularly heartbreaking, the whole affair,” Blehm said. “I created [Penman] in a one-room schoolhouse near Aspen when I was 12 years old. It’s been my life endeavor.”
He said he’s been attacked on social media; people call him a “hack” and say his Penman is a Jake knock-off.
“My image is tarnished,” Blehm said. “It hurts me when people say I’m the copy.”
Blehm, 49, said millions of dollars are being made based on his idea. “It’s 200 against one,” he said. “They have 200 employees and I don’t have any.”
Blehm added, however, Penman is an eternal optimist, and spreading his character’s message of lightheartedness and positivity is something he takes seriously.
“I’m trying to revive the comic strip,” Blehm said. “I’m using [the online fundraising site] Kickstarter to put together a new book of comic strips I plan on releasing in the fall.”
He also is working on a graphic novel.
“The message is that optimism isn’t always easy,” he said. “Sometimes you have to fight for it. Penman’s superpower is optimism.”
When asked if he could just start over and create a different character, Blehm said that isn’t an option.
“That’s folding. I’ll take this to the grave. I can’t stop. I have to keep trying.”