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.