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Edgar Rice Burroughs Inc. Using Trademark Law To Prevent The Use Of Public Domain Stories
from the only-eight-years-left,-make-them-count dept
The public domain is meant to be a source of free culture for all the world to enjoy, mix and derive other works from. Unfortunately, there are many people and organizations in the world that wish to block the use of public domain material. Edgar Rice Burroughs Inc. (ERB) is one such organization. Founded in 1923, this corporation has been handling all the copyrights and other rights for the works created by the author Edgar Rice Burroughs. Amongst the rights held by the corporation are the rights to the Tarzan and John Carter of Mars characters. What makes this situation somewhat unique is the fact that only a portion of the Tarzan and John Carter books are still covered by copyright in the US. A number of the early works were published prior to 1923 when modern copyright terms of life plus 70 years went into effect. Even though the copyrights of the early works are long expired, ERB has shown that it will block the use of both characters in modern derivative works.
With that in mind, it should come as little surprise that ERB has set its legal sights on the comic book company Dynamite Entertainment. You see, Dynamite had the audacity to base a series of comic books on the public domain stories and settings found in the early Tarzan and John Carter books. However, ERB was not having it. So it decided to sue Dynamite, not for copyright infringement (at least not primarily) but for trademark infringement. Since it can't fight Dynamite's use of those public domain stories on copyright grounds, it is attempting to use trademark law to block it.
In this lawsuit, ERB claims that Dynamite's use of the Tarzan and John Carter marks dilutes and damages the associated brands ERB controls. ERB claims that the manner in which Dynamite uses the mark, and specifically some of the covers which feature partial nudity, are damaging to the reputation and good will of ERB and the business it has built up around Tarzan and John Carter.
What this really sounds like is a company coming to the realization of what will happen in less than a decade's time. If people could just make comics and other derivative works based on its characters, then licensing deals, like the ones it made with Disney and Dark Horse Comics, would not be necessary. That's the real rub here. It is making a lot of money from those deals. If it were to be ruled either in court or through inaction that there is no need for such licensing when the derivative works are using the characters, settings and stories of the public domain works, then ERB's whole business model would fall flat. On the other hand, if ERB can win this case based on trademark alone, it could extend its business model and profit potential to long after the copyrights on all of Burroughs' works expire in 2020. If that is the case, it could set a very damaging precedent.
With that in mind, it should come as little surprise that ERB has set its legal sights on the comic book company Dynamite Entertainment. You see, Dynamite had the audacity to base a series of comic books on the public domain stories and settings found in the early Tarzan and John Carter books. However, ERB was not having it. So it decided to sue Dynamite, not for copyright infringement (at least not primarily) but for trademark infringement. Since it can't fight Dynamite's use of those public domain stories on copyright grounds, it is attempting to use trademark law to block it.
In this lawsuit, ERB claims that Dynamite's use of the Tarzan and John Carter marks dilutes and damages the associated brands ERB controls. ERB claims that the manner in which Dynamite uses the mark, and specifically some of the covers which feature partial nudity, are damaging to the reputation and good will of ERB and the business it has built up around Tarzan and John Carter.
What this really sounds like is a company coming to the realization of what will happen in less than a decade's time. If people could just make comics and other derivative works based on its characters, then licensing deals, like the ones it made with Disney and Dark Horse Comics, would not be necessary. That's the real rub here. It is making a lot of money from those deals. If it were to be ruled either in court or through inaction that there is no need for such licensing when the derivative works are using the characters, settings and stories of the public domain works, then ERB's whole business model would fall flat. On the other hand, if ERB can win this case based on trademark alone, it could extend its business model and profit potential to long after the copyrights on all of Burroughs' works expire in 2020. If that is the case, it could set a very damaging precedent.
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WarLord of Mars...
http://www.dynamite.net/htmlfiles/viewProduct.html?CAT=DF-Warlord_of_Mars
Lord of the Jungle...
http://www.dynamite.net/htmlfiles/viewProduct.html?CAT=DF-Lord_of_The_Jungle
BTW, neither "Warlord of Mars" or "Lord of the Jungle" is a registered trademark, despite ERB's claim.
You can look it up on the TESS website...
http://tess2.uspto.gov/bin/gate.exe?f=tess&state=4007:m50khq.1.1
The stories the comics are based on are PD with no dispute, so anyone can do adaptations or new stories based on them.
They just can't call the books "John Carter" or "Tarzan".
(And Dynamite doesn't)
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ERB Inc. has a history of this
I informed them that they do not own a genre -- and prior art exists, ranging from the Jandar of Callisto novels by Lin Carter, to ERB contemporaries like Otis Adelbert Kline, etc.
I informed them that no Burroughs material appears, public domain or otherwise, in our pastiche.
But they only backed off when I asked them how they had managed to get a copy -- which was only digitally available, with all sales records passed on directly to me. I pointed out that I had no record of a sale to either ERB, Inc., or its representatives, and that "of course, digital piracy is of great concern to us", and asked them if they could help me track down the source of their illegally-obtained copy, so I could issue the proper DMCA notice.
They never contacted me again. :)
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Re: ERB Inc. has a history of this
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Disney gearing up to do the same?
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Re: Disney gearing up to do the same?
I hope that this ERB case reaches a point that it would effectively negate any future attempt at using trademark law to block the use of public domain material. That would hurt Disney's ability to follow the same path with regard to Mickey.
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Unfortunate...
I can see this very thing happen decades from now when Marvel character's stories begin to enter the public domain... Disney will use every trick in the book, including trademark, to kill off attempts at using their characters.
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Re: Unfortunate...
As long as they don't use "John Carter" on the cover, it's fine.
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of course, far more intelligent would be to have a simple fixed length in the first place, but oh well.
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I don't know about that for sure, though it could be, because I will say that when I see books with any of the character names from the Martian stories written by ERB (books which I actually own, c. 1963 printing) like Dejah Thorus or Tars Tarkas, I would immediately assume they were ERBs books/stories as written, so if other fans of those series assumed the same thing, then the comics might in fact be an "annoyance". I haven't much studied TM law or regulations so make that a personal feeling I suppose.
I'm definitely not a fan of the new covers either. The original stories weren't based on anything terribly sexual - they were sci-fi with a touch of romance. Not having looked at the comics, I don't know if they twisted the stories, but they sure have the cover art.
That being said, young people today would probably find the covers, er "interesting", while old fogies like me find them lewd - particularly when someone like me views the covers in light of the stories they've read, rather than the stories contained in the comics. The current covers would not be a good fit to the original books/stories.
At least one of the books I own has a publishers note in it, whereby ERB "renewed" their copyright...but no note about how long for.
Oddly enough, a few days ago I had made a recent post on Google+ looking for three of the original stories, but the reprints from 1963, not the original print. I had photographed the covers from those I had, to be sure people trying to sell me a book, had the right printing. While you can buy reprints on demands, they don't have the right covers. Weird timing that another story about this series has popped up.
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At least one of the books I own has a publishers note in it, whereby ERB "renewed" their copyright...but no note about how long for.
You mentioned that your books were printed in 1963, at that time I believe copyright was 25 years with an optional 25 year renewal. That could be what it is referring to.
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The pre-1978 law was a 28-year copyright with a renewal of another 28 years...if you filed the paperwork!
If you didn't, there was no renewal!
A superbly-practical system, if you ask me!
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This just points to me how stupid people can be when they have no concept of seasons and illnesses.
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RE
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But but but....
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Re: But but but....
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As for harming anything, I can't see what unless it's a major attack of prudery. When I was much younger I had a couple of paperbacks of John Carter of Mars one published in the early 60s which hinted at a relationship with the woman depicted on the cover and the other from the 40s where the woman was almost as scantily dressed as in these covers. Judging from what was written on the back cover that edition was published for Allied soldiers, to increase morale, no doubt.
I found John Carter of Mars fascinating when I was 10. By the time I was 15 it was just tripe and I'd moved on to things like Asimov, Arthur C. Clarke and more adult stuff.
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RAH Always said the character names were fully purloined from ERB material and even states it many a time in the actual books themselves when talking about "World as Myth" theory.
OMG The Horror!
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Trademark Law and your guts...
I came out of that lawsuit on top, but it wasn't easy. They threatened a groundless counter suit meant to bleed my finances. When they saw I wasn't cowed, they capitulated and canceled the title in question (originally a Marvel UK title called Hells Angel. Guess who sued over that one).
This battle should got to Dynamite. We'll see if they have the courage to stand behind their convictions. If they stand tall and fight the good fight, they'll come out on top.
I wish them the best of luck.
Sincerely,
Hart D. Fisher
President/American Horrors
www.americanhorrors.com
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