You’ll recall that a few weeks ago, the estate of Edgar Rice Burroughs sued Dynamite over their ongoing lines of Tarzan and John Carter comics. Although the earliest works in each series are in the public domain, ERB, Inc. sued on the basis of trademark infringement, claiming that Dynamite’s Lord of the Jungle was infringing their trademark for “TARZAN LORD OF THE JUNGLE” and so on.
Well, Dynamite has responded, and it’s pretty much a blanket denial, as you can see above. Dynamite’s defense is pretty simple: the books are in the public domain, and ERB, Inc., doesn’t have a trademark to infringe. For instance, ERB didn’t file a trademark claim for Lord of the Jungle until March, 2012, although a shadowy company called ETT Corp. had filed one a few years earlier.
We’re not well versed enough in copyright and trademark to see who has the upper hand here, but it’s worth pointing out that this book, part of the pre-opening JOHN CARTER surge in interest, was in fact ALSO UNauthorized by ERB, Inc. Dynamite’s filing has a laundry list of unauthorized Tarzan and Barsoomian spinoffs.
As we mentioned in our first post on this lawsuit, it’s definitely one that bears watching in this IP-obsessed age. Tarzan is one of the first great licensed characters to go out of copyright, and this won’t be the last case of its kind.
[Thanks to Bumblebee for the link,]
I cannot wait to see what happens when the courts get a chance to rule on whether a trademark can in effect extend a copyright, because that is what is happening here. I’ve been waiting for someone to take on this issue for a very long time. The answer should be “no” because copyright is supposed to be a limited monopoly. It will probably depend on how deep ERB, Inc.’s pockets still are and if the big guns at Disney feel an obligation or have an interest to get involved.
If Dynamite had a defense stronger than denial, I would think they might countersue just to gum up the works, but then that also requires money.
My knowledge of laws gets me thinking that under a copyright defense they could make the case that derivative works are now possible based on the first story from 1914, but then ERB has been managing the estate and properties for many years, in a manner similar to Tolkien’s estate, and Robert E. Howard.
Often trademarks are forever (until they lapse from non-use for a certain period) and can govern Titles, phrases, essentially the brands and images that serves as Marks representative of a property.
Copyright is not forever (it’s like 99 years after the creators death, but that’s current law) and only covers the unique expression of an idea, and even then it is a copy-right, the right to reproduce.
Consider how DC holds the Trademark to creator owned work, yet the creator might retain the copyright. Trademark = broader control.
ERB, Inc has held trademarks on Tarzan going back to a least 1979 and trademark persist through use, not contract.
Good luck to Dynamite, although it seems to me infringement is an easier argument to make. It might not help Dynamite either if there was an attempt in the past where they tried to negotiate with ERB for the rights to some of these properties.
The good thing about trademark law (very distinct from copyright law) is that it’s really cut and dried. If ERB has registered and used the same trademarks Dynamite is using, it’s infringement. If no to either then it’s not. It sounds like they’re making an argument that the Dynamite marks are intentionally confusing, while not exactly the same as ERB’s marks, which is tough — I guess that’s what judges are for.
How long before the ERB estate asks their partners at Disney to have their subsidiary Marvel withdraw all promotional activities with Dynamic Forces?
And wonder if Disney and Marvel would do it?
Dynamite has lost the copyright issue as a result of s January 2012 Supreme Court decision.
Story in the NY Times.
http://www.nytimes.com/2012/01/19/business/public-domain-works-can-be-copyrighted-anew-justices-rule.html
To summarize, when the US copyright law was change to meet the Berne Convention (used in Europe and other parts of the world), the longer copyrights (author’s life plus 70 years and 95 years for corporate copyrights) were assumed to be only for works currently under copyright and new works. Anything in the public domain was considered to remain in the public domain.
But the Supreme Court said the law applied retroactively to previously public domain works. A motivating factor was fairness. Authors retained copyright in Europe and could make money off of their work. But in the US they made none. And since prints could easily go to Europe, it was money lost.
Since Burroughs died in 1950 all his works are under copyright until 2020.
On a wider basis this affects all those characters such as the Destroyer and Green Lama used by Alan Moore for DC and by Alex Ross for Superpowers Project. They are now copyright violators. However the copyright holders have to protest the use.
Under the law if you don’t protest and send the cease and desist letter, and then take action, you are abandoning your copyrights. And it doesn’t’ matter if someone made money off the violation. This was also part of a Supreme Court case with Alfred E Neumann. The copyright holder for Alfred only sued people who made money. The court said, you can’t pick and choose. You have to go after every violation that you know of. This is why Disney sends out so many letters.
I believe this will also affect some volumes of Alan Moore’s League of Extraordinary Gentlemen. I have read some volumes can’t be sold in England and Europe because the characters are under copyright there. Now the characters are under copyright in the US also.
The side issue of trademarks for the ERB characters is more than likely fairly mute. They more than likely have a long term trademark for Tarzan. For John Carter they can easily show the court that as copyright holders they should have trademark because Dynamite probably wouldn’t have been doing anything with the characters if the Disney movie wasn’t coming out. Attempts to cash in on others works don’t go over very well.
That’s not correct. While that case is a bad decision, for reasons which I will get into below, this does mean that ERB’s Barsoom books are back in the public domain. They aren’t. The ruling puts SOME books back into the public domain to match other country’s laws.
The reason it is a bad decision is that the public domain is a matter of Constitutional significance. If it had not been intended to create a public domain, copyright would have been eternal.