Max Fleischer
Out of more than sixty songs sung by the cartoon character Betty Boop , only four of these were previously sung by the plaintiff Helen Kane, such songs had been sung by other actresses.
As of May, 30, and up to date hereof the Fleischer Studios produced, released and exhibited in access of (50) separate, talking animated cartoon called “Betty Boop Cartoons,” which said cartoons have different plots, songs continuity and script, and in which Betty Boop is a character.
1. There is no personal liability on the part of the defendant Max Fleischer.
2. That the cartoon character Betty Boop at the time was, nor is it now, the portrait of picture of the plaintiff of a caricature of her.
3. That the defendants did not use the name, portrait, picture of caricature of the plaintiff.
4. The plaintiff has no property right in the tones of voice, motions, actions and gestures used by her nor does she have any property right in the words “Boop-Boop-a-Doop” and its variants, nor does she have the exclusive right to the rendition of the songs containing such vocables.
5. Beginning of the year 1919, and for many years prior thereto, and defendant Helen Kane was advertised as the “Boop Girl” and/or “Boop-a-Doop Girl” and/or “Boop-Boop-a-Doop Girl” and/or “Boop” and/or “Boop-a-Doop” and/or “Boop-Boop-a-Doop.”
6. That the persons so procured by the defendants as aforesaid were winners of a city-wide contest held in the City of New York for the best imitation of the plaintiff’s aforesaid unique style of singing and acting, and which said contest was called the “Helen Kane Boop-a-Doop” contest and which said contest had taken place in or about November, 1929, and several months prior to the production of the talking, animated moving picture cartoons known as the “Betty Boop Cartoons.”
Miss Kane, did you ever give your written consent to Max Fleischer to use your picture or likeness or representation in any form whatsoever?
Helen Kane: “I did not.”
Did you ever give him any oral consent to that effect?
Helen Kane: “No, sir.”
Did you ever give such consent either in writing or orally to the defendant Paramount Publix Corporation?
Helen Kane: “No, sir.”
Let us come down to the Betty Boop particularly. Is there a character in this animated cartoon or cartoons whom you describe and advertise as Betty Boop?
Max Fleischer: “Yes, sir.”
In 1931 and in the early part of 1932, who were the individuals who supplied the synchronizated voice that purported to do the talking and singing for the Betty Boop in the Betty Boop animated talking cartoons?
Max Fleischer: “Miss Margie Hines.”
Tell me, please, when she was first employed either by you or anyone else to do the singing for the Betty Boop character?
Max Fleischer: “When the first picture was completed.”
Would your records assist you in giving us the actual dates or do you recall them without referring to your records?
Max Fleischer: “I can only give you an approximate date.”
Tell me the approximate date when Margie Hines was hired to do the talking and/or singing for Betty Boop. What is the date?
Max Fleischer: “May 1st, about May 1st, 1930.”
Who employed her originally on behalf of your corporation?
Max Fleischer: “Paramount.”
Who of and in the Paramount employed her first? I mean, the individual as distinguished from the corporation Paramount?
Max Fleischer: “You mean the name of the man who engaged her?”
Correct, sir?
Max Fleischer: “I believe it was Lou Diamond.”
Did Lou Diamond discuss with you the hiring of this girl Margie Hines?
Max Fleischer: Yes, sir.
And in pursuance of the discussion you agreed with Paramount to employ this girl Margie Hines’ voice to purport to be the talking and singing voice of the character Betty Boop in these cartoons, is that correct?
Max Flesicher: “The question is too long.”
Mr. Phillips: “I object to the form of the question.”
Mr. Weltz: “Question withdrawn.”
Mr Fleischer, do you understand when I say that the voice of Margie Hines purporting to be the voice of Betty Boop, that I mean by that Margie Hines did the singing with the voice of the character Betty Boop?
Max Fleischer: “I understand that.”
Putting it that way, that is simple to understand.
Max Fleischer: “Yes.”
Was it in pursuance of this discussion with Mr. Diamond that you first employed Margie Hines to do the singing for the Betty Boop for the Betty Boop in cartoons or the singing of Betty Boop in the cartoons?
Max Fleischer: “No.”
Was the first picture in which Margie Hines spoke or sang to the accompaniment of the lip movement in the character Betty Boop, in your Betty Boop character?
Max Fleischer: “The first picture Dizzy Dishes.”
Mt. Fleischer, what was the name of that song Margie Hines sang synchronizedly with the voice of the character of Betty Boop in Dizzy Dishes?
Max Fleischer: “The name of the song was ‘I Have to Have You’.”
You know, don’t you that “I Have to Have You” was a song that was sung in the picture “Pointed Heels”?
Max Fleischer: “No.”
You don’t know that now?
Max Fleischer: “I know it now.”
Mr. Welling: “I object to counsel cross-examining his own witness.”
Mr. Weltz: “I am not cross-examining my witness.”
The Court: “Have no discussion with your adversary.”
Mr. Welling: “The witness answered that he did not know that was the song that the plaintiff apparently claims was sung, and the counsel is bound by the witness’ answer.”
Mr. Weltz: “That is so absurd.”
The Court: “You are violating the rule of the Court.”
I ask you do you know the song which Betty Boop appeared to sing in Dizzy Dishes to-witch, “I Have to Have You,” was a song that was sung by Helen Kane in the moving picture Pointed Heels?
Max Fleischer: “I know it now.”
Do you know that the talking moving picture Pointed Heels is a picture that was produced by the Paramount?
Max Fleischer: “So it says on the title.”
Don’t you know that is the fact?
Max Fleischer: “No, sir.”
How long did Margie Hines continue to sing synchronizedly with the lip and mouth movements of Betty Boop in these cartoons?
Mr. Phillips: “I object to the form of the question. The singer did not sing synchronizedly.”
Mr. Weltz objected. The Court decided to make no further directions that there must be no discussion and no comment of counsel during the progress of the trial.
Max Fleischer: “By how long, do you mean how many pictures she worked in?”
How long a period of time, or, you may give us the picture, if that will help you?”
Max Fleischer: “She was engaged as we required her for pictures, and I will give you the picture that she sang in.”
Tell me then the names of the pictures wherein she sang for Betty Boop.
Max Fleischer: The next picture she sang, that is, Miss Margie Hines sang in, was Barnacle Bill.
May I suggest that as you go along you give us the date when these pictures were made available to Paramount for distribution and publication?
Max Fleischer: “You mean the delivery date?”
Mr. Fleischer, with your records before you can you tell us, please, the names of these Betty Boop cartoon pictures, so-called, wherein Margie Hines sang and spoke for the character Betty Boop.
Max Fleischer: “The first picture is Dizzy Dishes, delivery date May 26, 1930. The next picture is Barnacle Bill, delivery date June 13, 1930.
The next picture?
Max Fleischer: Accordion Joe, delivered October 17, 1930. The next picture is Mysterious Mose, delivery date November 8, 1930.
The next picture?
Max Fleischer: “The next picture is Bimbo’s Initiation, delivery date June 12, 1931, and the next picture is Minding the Baby, delivered June 8, 1931.
The next picture?
Max Fleischer: “The next picture is In the Shade of the Old Apple Sauce, delivery date July 17, 1931.
The next picture?
Max Fleischer: “The next picture is Mask-A-Raid, delivered, date August 4, 1931; all sung by Margie Hines. And the next one is Any Rags?, delivered September 1, 1931.
What is the name of the other girl who sang?
Max Fleischer: “Mae Questel.”
When you say that two girls sang, do you mean for us to understand that two girls did the singing for one character Betty Boop?
Max Fleischer: “Yes.”
In other words, one girl sang her part of the Betty Boop song and then the other girl sang and spoke the other part of the Betty Boop song?
Max Fleischer: “May I make that a little clearer? In some of the pictures we record twice before we start once, and sometimes after we finish. In one case I believe Miss Margie Hines sang before we started the cartoon, and Miss Questel finished after the cartoon.”
What is the next picture?
Max Fleischer: Minnie the Moocher, in which two girls sang, Margie Hines and Mae Questel, delivered on October 29, 1931. And the next one is Swim or Sink delivered November 13, 1931.
Who sang in that one?
Max Fleischer: “Margie Hines.”
The next one?
Max Fleischer: The Dancing Fool, delivered December 16, 1931. And the next one is A Hunting We Will Go, delivered March 21, 1932. December 29, 1931, and the next one is Jack and the Beanstalk, delivered June 29, 1931,
and the next one is Dizzy Red Riding Hood, delivered September 9, 1931, and the next one is
Wait Till the Sun Shines Nellie, delivered January 27, 1932, and the next one is Betty Boop’s
Bizzy Bee, delivered April 27, 1932 and the next one is I’ll Be Glad When You’re Dead, delivery date
August 11, 1932. That is all she sang in the series.”
Tell me, please, who hired Mae Questel first, was it also Paramount?
Max Fleischer: “Yes.”
The same gentleman, Mr. Diamond. How do you spell his name?
Max Fleischer: “D-i-a-m-o-n-d.”
What is the first name?
Max Fleischer: “Louis.”
Is he still with Paramount?
Max Fleischer: “Yes, sir.”
Did you discuss this girl, Mae Questel? before she was used
in connection with the Betty Boop pictures?
Max Fleischer: “Not by name.”
You merely discussed her as a personage?
Max Fleischer: I asked him to give me a voice.”
And the voice was procured?
Max Fleischer: “Yes.”
And you utilized her in your production of pictures that you have mentioned?
Max Fleischer: “Mae Questel, yes.”
Please let us have the names of the two girls who sang in the one picture?
Max Fleischer: “Bonnie Poe and Mae Questel, ‘The Old Man of the Mountain’.”
You mean by what you have said that two girls sang two different parts of the voice of Betty
Boop, or what appeared to be the voice of Betty Boop in cartoons?
Max Fleischer: “Yes, delivered March 21, 1933.”
Go on.
Max Fleischer: “The same two girls in I Heard, May 26, 1933.
Did the two girls sing the same, or did each sing a part for Betty Boop?
Max Fleischer: “Each sang a part.”
What was the first picture wherein Bonnie Poe sang?
Max Fleischer: “Betty Boop in Mother Goose Land.
Is that the first picture wherein Bonnie Poe sang? What is the date of
the delivery of that?
Max Fleischer: “February 21, 1933.”
Was she also employed under the same circumstances as the other two girls who
sang for the Betty Boop character?
Max Fleischer: “Yes.”
I think that in your statement of the names of the girls
who sang you inadvertently omitted the name of the girl who
sang in the cartoon picture of The Bum Bandit, will you check
that, please?
Max Fleischer: “I did not omit the picture. This was sung by an entirely different girl.”
What was the name of the girl?
Max Fleischer: “Harriet Lee.”
Have you given us now the names of all of the pictures wherein any
of those three girls sang?
Max Fleischer: “Up to and including ‘I Heard’, delivery date May 26, 1933.
Mr. Fleischer, is it also a fact that in these Betty Boop cartoons, the words “Boop-Boop-a-Doop”
were sung by male voices as well as being sung by female voices?
Max Fleischer: “Yes, sir.”
And that happened quite often during these pictures?
Max Fleischer: “Occasionally.”
Isn’t it a fact that in this pictureThe Bum Bandit, and Dangerous Nan McGrew
the song was sung by the character of Betty Boop?
Max Fleischer: Yes.”
Do you know now, sir the that the song ‘Dangerous Nan McGrew’ was sung in a picture
wherein plaintiff played a stellar role, which was known as ‘Dangerous Nan McGrew’?”
Max Fleischer: “Yes, but it is not the same song.”
I didn’t ask you that.
Mr. Weltz: “I ask to have the latter part of the answer stricken out.”
The Court: “Granted.”
I ask you do you now know that this song ‘Pass the Sugar’ was
written expressly for Helen Kane?
Max Fleischer: “I do not know that.”
It is a fact, sir, that you drew any number of these pictures that
were ultimately made a part of the Betty Boop cartoons?
Mr. Welling: Objected to as incompetent, irrelevant and immaterial, and has
nothing to do with the issue of unfair competition in this case. We
are going back to the cartoons now.
Max Fleischer: “I don’t know what you mean.”
In making these cartoons you have first a picture of the character, isn’t that
so a drawing of the character?
Max Fleischer: “What do you mean by first?”
Before you have the final cartoon you must first have a drawing of the
character that will be part of the cartoon.
Max Fleischer: “Yes.”
Are you the gentleman who prepared these drawings of the cartoon
Betty Boop?
Max Fleischer: “I prepared drawings…”
The Court: “The witness has stated that he did make up
all of these cartoons in collaboration with others in the employ
of the Fleischer company.”
Mr. Weltz. “All right.”
When was the surname “Boop” given to this character Betty Boop?
Max Fleischer: “It was used for the first time in the picture called Bimbo’s Express.”
Mr. Fleischer, you answered in direct ex-animation, that there
was employed for these songs, Mae Questel, Bonnie Poe and Margie Hines. You
also stated the name of the pictures in each of which these girls voices
were used. You omitted Betty Boop’s May Party. Will you tell
me what voice was used for that picture?
Max Fleischer: “The name of the girl is Little Ann Little.”
Did Little Ann Little appear in any other so-called Betty Boop cartoons?
Max Fleischer: Yes.”
Was Little Ann Little’s voice used for the recording of the songs sung
by Betty Boop in Betty Boop’s Birthday Party.
Max Fleischer: “Yes.”
Was her voice used in the so-called Betty Boop cartoons called
Betty Boop’s Big Boss?
Max Fleischer: “Yes.”
Was she the girl whose voice was used for Popeye the Sailor?
Max Fleischer: “No.”
Whose voice was used there?
Max Fleischer: “Bonnie Poe.”
The song Dangerous Nan McGrew that you referred to, was
that used in one of the Betty Boop cartoons, was that the same song that
was used in the motion picture in which Helen Kane appeared called Dangerous Nan McGrew and the song that she sang there?
Max Fleischer: “It is a complete different song.”
Who was the writer of the song used in your picture?
Max Fleischer: “Charlotte Miller.”
Do you know, Mr. Fleischer, who the writer of the song
was that was used in the Helen Kane picture?
Max Fleischer: “I do not.”
It was not Charlotte Miller?
Max Fleischer: “No, sir.”
Did you ever see the moving picture Dangerous Nan McGrew, yes or no?
Max Fleischer: “Yes.”
When?
Max Fleischer: “After this action.”
Max Fleischer is then asked if had seen the picture. He admits
he saw it. Betty Boop and Helen’s cowgirl costumes are compared,
Fleischer denies all claims of copying Helen Kane from that film and
can’t remember any of the songs in the original film which featured
Helen Kane. Helen Kane is then questioned about people who had preceded her.
Miss Kane, prior to the that time, and at the same time that you were singing these songs in a baby’s voice, you know, don’t you, that there were many performers that were singing songs in a baby’s voice?
Helen Kane: “Not in my particular style.”
I didn’t ask you that.
Helen Kane: “I did not know that.”
Have you ever heard of the name Nan Halperin?
Helen Kane: “Yes, many years ago.”
Did not she sing in a baby voice?
Helen Kane: “I don’t remember yes, I do. I remember
hearing her sing.”
That was before you did?
Helen Kane: “No, I sang the same bill.”
At the same bill?
Helen Kane: “Yes.”
Do you remember Irene Franklin?
Helen Kane: “I know I remember the name, but
that is a little before my time.”
I know that too.
Helen Kane: “Thank you.”
She sang baby songs in a baby voice?
Helen Kane: “I don’t know. I mean, I saw Irene Franklin
later on in years, but I do not even remember
her singing baby songs.”
Do you remember the song “Red, Red, Ginger”?
Helen Kane: Yes.
You know that was a song that was sung in a baby
voice?
Helen Kane: “I don’t know that.”
Do you remember Frances White?
Helen Kane: “Very well.”
She preceded you, did she not?
Helen Kane: “Yes.”
As a well known stage performer?
Helen Kane: “Yes.”
And come out in a baby’s costume at times?
Helen Kane: “Yes.”
And sometimes would appear singing in a baby
voice with grown up costumes of a woman?
Helen Kane: “Yes.”
Do you know Peggy Bernier?”
Helen Kane: “Yes.”
Did she sing in a baby voice?
Helen Kane: “I never heard Miss Bernier sing.”
You never heard her?
Helen Kane: “Never.”
Do you know her well?
Helen Kane: “No.”
Did you ever see her perform at all?
Helen Kane: “No.”
Do you know from what you have heard
that she did sing in a baby voice?
Helen Kane: “I don’t know. She followed
me in the Paramount, and I don’t remember.”
You have heard of the Duncan Sisters?
Helen Kane: “Yes.”
And the Duncan Sisters sang in a baby
voice, didn’t they?
Helen Kane: “Yes.”
And they preceded you?
Helen Kane: “Yes.”
On the stage?
Helen Kane: “No, I sang at the
same time with the Duncan Sisters.”
You will admit that they were very
prominent before you?
Helen Kane: “Yes.”
Theatrically?
Helen Kane: “Yes.”
And so were the others, with the
exceptions that I have mentioned?
Helen Kane: Except Peggy Bernier.
All the other names that I have mentioned
were theatrically prominent before you?
Helen Kane: “Yes.”
Hannah Williams, do you know her?
Helen Kane: Yes.”
Did she sing in a baby voice?
Helen Kane: “No.”
Miss Kane, for how many years did you
sing these songs with the interpolation
“Boop-Boop-a-Doop” or similar sounds?
Helen Kane: “From my first appearance at the Paramount Theatre in 1928.”
Up to when?
Helen Kane: “Up to present day.”
Helen Kane then explains that she was in a show called Shady Lady
in which she had appeared as the leading performer.
Did you sing and “Boop-Boop-a-Doop” songs in that?
Helen Kane: “Oh, yes I did.”
What song is that?
Helen Kane: “‘Where, Where Can I Find Love,'” and
also as the curtain came down, and Betty Boop opens
the curtains, the last song I sang was ‘Boop-Boop-a-Doop’.”
Was that the only song?
Helen Kane: “No, ‘Swinging Little Thing’.”
Helen Kane had told the newspapers that she felt like
a miniature Mae West when she was interviewed. However
in court she claimed that she did not. It is reported
in several of her newspaper interviews. Which was once
archived on the Betty Boop Wikia.
In that show didn’t you want to portray the role of a
Miss Mae West?
Helen Kane: “That is ridiculous.”
Didn’t you tell the reporters who interviewed you
when you opened the show that you thought that you could do the same sort
of thing that Mae West was doing?
Helen Kane: “I did not.”
If a reporter so stated that you stated that, then it is not the fact?
Helen Kane: “It is not the fact.”
Around this part, Helen Kane claims that everyone was imitating her. Which was true, but
she clearly got her own inspiration from somewhere. As stated she wasn’t the original
baby singer of songs. And she even admitted to this.
Miss Kane, when you were singing these songs ‘Boop-Boop-a-Doop’ or songs with those words
interpolated in them, there were other people in the theatrical profession that were singing those
songs, were there not?
Helen Kane: “They were imitating me.”
A few paragraphs after Helen Kane is asked about Tony Shayne. African-American
chid performer Baby Esther Jones in 1928 was actively working for the William Morris office under
Tony Shayne. Helen Kane admits that Tony Shayne was her manager at one point.
Helen Kane: “I had another man by the name of Tony Shayne.”
Let me understand you, I want to get the order in which these men acted as your booking agent or
manager?
Helen Kane: Yes, oh. William Morris’ office.”
Helen Kane then states that she was managed by Lew Irwin Harry Vestry and Tony Shayne.
As early of 1931, you knew that Mae Questel was one of the girls employed by Fleischer Studios
to record the voice to be used in conjunction with the Betty Boop cartoons.
Helen Kane: “I don’t know, but I know that she was employed.”
You learned that in 1931 over the air?
Helen Kane: “I don’t know when it was, but that is when I learned it.”
How did you know that it was Mae Questel?
Helen Kane: “I made it my business to find out who was singing like me.”
I show you this photograph and ask you if what is written on there is in your handwriting.
Helen Kane: “Yes.”
The picture is your picture?
Helen Kane: “Yes.”
You gave the picture to Miss Margie Hines, didn’t you?
Helen Kane: “Yes.”
On the occasion of her successful participation in your Helen Kane contest,
is that right?
Helen Kane: “That is right, but I did not expect her to bring it back in court.”
I show you this disc, and this roll of films, and ask you whether you got this from Metro Goldwyn-Mayer.
Max Fleischer: “Yes.”
Were they synchronized?
Max Fleischer: “They were not very well synchronized.”
Just what do you mean by synchronization?
Max Fleischer: “A strict coordination of time between the two elements, one the picture and the other the sound.”
Is the recording of sound for motion picture purposes on discs used today?
Max Fleischer: “It is obsolete.”
It is explained how the older discs were used in the early days of sound but it was usual to experience a lack of synchronization between the disc and the reel.
The reel that the Fleischers and Paramount had shown was of Baby Esther Jones. The footage had to be re-synchronized to the early disc footage by the Fleischers as they had trouble playing it in sync.