ERB Inc. sues Dynamite and company over Tarzan and John Carter

313706 2306100585710 1645140903 2280723 728033197 n ERB Inc. sues Dynamite and company over Tarzan and John Carter
Uh, uh, looks like maybe Dynamite should have entitled its Barsoomian comics “Master of the Male Wedgie” and not Dejah Thoris and so on, because ERB, Inc., the family-owned corporation which controls existing trademarks to the Edgar Rice Burroughs estate, is suing Dynamite, Dynamic Forces, and Savage Tales Entertainment for trademark infringement and unfair competition over Dynamite’s publication of books entitled “Lord of the Jungle,” “Warlord of Mars,” “Warlord of Mars: Dejah Thoris”, and “Warlord of Mars: Fall of Barsoom” based on the Edgar Rice Burroughs originals.
021612 Tarzan Suit

The complaint is reproduced in full above, and makes interesting reading for everyone who’s been all about IP and copyright talk over the last few weeks. The John Carter books—soon coming to the screen as a major motion picture from Disney/Pixar—and the Tarzan books were first published a century ago and the first books in both series are now in the public domain—but only in the US. As the lawsuit notes, in the UK, Dynamite’s books infringe existing copyrights, and ERB, Inc. has been able to successfully prosecute copyright infringement in Europe before.

According to the suit, Dynamite’s Nick Barrucci approached ERB Inc several years ago re the licenses, but was rebuffed. However, he’s since established an entire line of Barsoom comics and a new Tarzan book as well, based on the material that is in the public domain.

ERB, Inc., which was created in 1923 to manage the already expanding media empire of Burroughs’ immensely popular works, still owns the trademarks to the characters, including Tarzan, John Carter, and Barsoom. They claim “common law” rights to the titles “Lord of the Jungle” and “Warlord of Mars,” both actual titles of Burroughs books. You can’t copyright a title, but ERB, Inc. still owns the copyrights to both books. Similarly they have trademarked both “Barsoom” and “Dejah Thoris,” and claim the Dynamite book WARLORD OF MARS: DEJAH THORIS and other spin-offs violate their trademark.

201202171250 ERB Inc. sues Dynamite and company over Tarzan and John Carter

In addition, they claim the Dynamite titles contain inappropriate material: that something called the “Risqué Nude” cover variants feature nude Dejah Thoris—and other covers are “near pornographic.” Clearly these ERB, Inc. people have eyes in their head.

This is going to be a pretty meaty case. The great icons of the 20th century are beginning to come into the public domain; this isn’t going to be an isolated case.

Licensed Tarzan and John Carter comics have been coming out from Dark Horse and Marvel in anticipation of the movie, which opens March 9th. Although the John Carter brand has been heating up in the comics realm, as ICv2 points out,the tracking on the film is not good. Deadline claims the film could be “Disney’s biggest write-off of all time.” While John Carter fans—such as The Beat—have been hoping for a movie version all their lives, it appears that the pre-awareness of the brand is very low. The ads for the movie look fairly generic thus far. While Pixar has had the magic touch, and the film is a labor of love for director Andrew Stanton, they’re going to need every ounce of the marketing howitzer that’s about to kick in to sell the film.

2012021712501 ERB Inc. sues Dynamite and company over Tarzan and John Carter

Source: WSJ

Comments

  1. I bet if the film was called “John Carter: Warlord of Mars” instead of the generic “John Carter” it would have been generating more excitement. Brand awareness or not, it’s a more exciting title.

    After all, wasn’t John Carter the name of Noah Wyle’s character on ER?

  2. Richard Watson says:

    To show you the ‘thinking’ behind the people making the film; it wasn’t called “A Princess Of Mars” because they think that men wouldn’t go to see a film with the word “Princess” in the title and it isn’t called “john Carter Of Mars” anymore because they think women won’t go to see a film with “Mars” in the title…

  3. Chris Hero says:

    I can totally see young boys not wanting to see a movie called “Princess of Mars,” so I have no issues with the title. I am *really* looking forward to the movies, however, because I *really* enjoy the John Carter stories. I hope Disney’s able to sell the movie because I’d love to see more, but I’m having my doubts.

    The copyright stuff…I feel totally burned out on copyright stories.

  4. Earth-2 Chad says:

    Richard, I think you vastly overestimate the ability of the average American male to get over having “princess” in the title of an action-filled science-fiction movie. (I think women would be fine with “Mars,” though.)

    Me, I’m looking forward to it, largely because of The Beat’s strong and steady drumbeat of coverage.

  5. Earth-2 Chad says:

    Oh, and here’s a question: If Dynamite loses the lawsuit, will I also lose the digital copies of the Warlord of Mars comics I bought on Comixology back when Dynamite had a 99¢ sale?

  6. Kid Kyoto says:

    “I bet if the film was called “John Carter: Warlord of Mars” instead of the generic “John Carter” it would have been generating more excitement. Brand awareness or not, it’s a more exciting title.”

    IIRC the original title was John Carter of Mars but after Mars Needs Moms flopped the marketing mentats removed the word Mars.

    Because obviously it’s the word Mars that made Mars Needs Moms fail.

  7. Kid Kyoto says:

    Oh and as to the case, looks bad for Dynamite. If ERB producing products called Warlord of Mars and Lord of the Jungle then those names are trademarkable. TMs unlike copyrights, do not go into the public domain.

    They can write all the John Carter and Tarzan books they want, but they can’t call them by any of the names that being used by other competeting products.

    Frankly I would have gone with Lord/Warlord of the Public Domain.

  8. Brad Ricca says:

    Don’t they do a Disney “Princesses on Ice” tour? Can you imagine Dejah Thoris coming out last and moms shrieking? All Disney had to do to keep the title was put her on the poster. Haven’t they been trying to promote a more forward-looking princess anyway, as the film version will no doubt and hopefully be?

  9. “In addition, they claim the Dynamite titles contain inappropriate material: that something called the “Risqué Nude” cover variants feature nude Dejah Thoris—and other covers are “near pornographic.” Clearly these ERB, Inc. people have eyes in their head.”

    Except that Dejah Thoris is nude in the original books, except for jewelry: “She was as destitute of clothes as the green Martians who accompanied her… she was entirely naked…”

    In fact, *everybody’s* naked in the books–the men on Mars don’t wear pants, only bandoliers and weapons belts. (Insert long-sword jokes _here_.) It’s only publishers and movie producers who give them clothes.

  10. Nick Jones says:

    “If Dynamite loses the lawsuit, will I also lose the digital copies of the Warlord of Mars comics I bought on Comixology back when Dynamite had a 99¢ sale?”

    Ah, the things we ‘dead tree’ aficionados never have to worry about. :D

  11. I have no doubt Dynamite checked to see if the phrases “Lord of the Jungle” and “Warlord of Mars” were trademarked.

    Odds are, they really aren’t or the applications were just recently put through.

    They knew the names John Carter and Tarzan couldn’t be used and because of the public domain issue, found the correct way around the trademarks.

    I don’t think ERB will have much of a leg to stand on outside of stopping the comics from being sold outside the US.

    They’re just annoyed someone found a way to do a better job with their material then they were. Because if they were really going to stop this, you stop it before it starts, not when some books have been going on for over a year and you’ve conveniently got a movie now coming out.

  12. I thought it was kind of weird about that the indica on Lord of the Jungle(tm) #1 says “Lord of the Jungle is TM and C Savage Tales Entertainment, llc.”, and I now wonder if it was a preemptive attempt on Dynamite’s side to distance themselves somewhat from lawsuits like this.

    Looking up Savage Tales I found a number of other trademarks, including Human Fly, Super Zombies, and Charlton Comics(!).

    But best of all was their attempt to trademark Peter Cannon, Thunderbolt, which was rejected because it was too similar to Marvel’s Thunderbolts.

    The full PDF is here (I haven’t read it all): http://ttabvue.uspto.gov/ttabvue/ttabvue-77816357-EXA-19.pdf

    But some choice quotes:
    “prices of applicant and registrant’s comic books range from $1.25 to $4.00, which is relatively inexpensive. It has often been stated that purchasers of relatively inexpensive products are held to a lesser standard of purchasing care and are more likely to be confused as to the source of the goods.”

    “there is no material difference, in a trademark sense, between singular and plural forms of a word”

    “Exhibit 3 is the result of a “search of the titles sold by Mile High Comics listing the first 50 titles containing [Thunderbolts].” A review of this exhibit is virtually impossible because the listings are indecipherable. It appears that there are 19 listings, but the word “Thunderbolts” can be deciphered in only some of them. At the top of the exhibit is printed: “Your search for
    ‘thunderbolt’ found 47 matching titles,” and a book entitled “Essential Official Handbook of the Marvel Universe-Update 89 Vol. 1 TPB” is advertised next to this explanatory note. We cannot tell whether the listings refer to only comic books issued by Marvel Comics or
    whether they identify third-party publishers.”

    I kind of love the idea of a lawyer or judge tracking down, and then reading Essential Official Handbook of the Marvel Universe-Update 89 Vol. 1, and wondering what on Earth it has to do with this case.

  13. James Van Hise says:

    The thing is, Dynamite has done more with the ERB characters in the last year than Dark Horse has in 15 years. Dark Horse has just been reprinting Tarzan comics in hardcover rather than doing new stories. Apparently Marvel made ERB Inc a better offer for John Carter when the Dark Horse license for that title came up for renewal because Dark Horse has done nothing with John Carter since the 1990s. Their Tarzan/John Carter crossover was a nightmare which annoyed ERB fans so much that they stopped buying all of the Dark Horse ERB comics. One John Carter story which Dark Horse submitted to ERB Inc for approval (and which I read at the time as I was asked for my comments by Danton Burroughs) had the working title “John Carter and the Biker Chicks of Mars” (which I guess was a joke title they planned to change) but the plot was so awful that I had no trouble writing an essay about what was wrong with it. DH had already had a finished cover drawn for the issue which showed a scantily clad woman riding what was the equivalent of a Martian motorcycle. Dark Horse never did do any new John Carter comics after that, and the cover art I saw remains unpublished.

  14. Don Murphy says:

    The case law establishes that you are not allowed to use Trademark to artificially extend Copyright. Otherwise nothing would enter the Public Domain. Also the NY courts have no jurisdiction over UK Copyright law. It seems that ERB is bullying as usual with some low rent lawyers. Dynamite should just give them the finger and move on.

  15. Gillian Davencroft says:

    The only reason this is happening now is because of Disney. Thats all there is to it.

  16. OtisTFirefly says:

    Well, if they lose they’ll do what they’re really good at: putting out the comic with a super special Alex Ross cover, and of course the Variant-A Alex Ross cover, and the Variant-B Virgin Alex Ross cover, and the Variant C-Variant Alex Ross cover, and the Variant D-Variant Virgin Alex Ross cover, and the Variant E-pencils only Alex Ross Cover, and the Variant F-Virgin Alex Ross pencils only cover, and then throw in 4 other variant covers by other artists. All this on top of “concepts” and “designs” by superstar Alex Ross (according to the name at the top of all the promotional materials.)

  17. Mike Richardson says:

    Sorry James, but everything you say is ridiculous. There was no such Carter title submitted to ERB and no such project. Our last John Carter project was stopped due to the illness of the writer/artist. Our license then expired. Because of the film ERB decided not to renew it. As far as Danton goes, he was a friend of mine and we discussed each and every project. As far as our publishing plan, we’ve never stopped publishing Tarzan. We’r focused on the archives and a new Tarzan title will arrive later this month.

  18. Don Murphy: You raise a VERY good point. This really does seem to be another case of the ERB estate bullying someone when, really, they should have no legal standing to do so. I’m not a lawyer, but I did study copyright law as part of my Journalism degree, and have since studied Trademark law (not as a lawyer, but as someone who needed to trademark a product). The John Carter material is clearly in the public domain and it SHOULD be.

    The Public Domain exists so that older works can serve as inspiration for newer work. Without the Public Domain status, we would not have new work based on Dracula, Sherlock Holmes, or (for that matter) the musical Les Miserable.

  19. AndyD says:

    ““In addition, they claim the Dynamite titles contain inappropriate material: that something called the “Risqué Nude” cover variants feature nude Dejah Thoris—and other covers are “near pornographic.”

    I really don´t want to defend these Dynamite series as I thought them just awful, but that kind of hypocricy is breathtaking and shameless. Are they just nuts or do they really believe the nonsense they are writing?

  20. Don Murphy says:

    Mike Mitchell- Tarzan is mostly PD too. You could tell any Tarzan story you damned well pleased as long as it wasn’t identical to the few book still under copyright Burroughs could suck it.

    Richardson remembers Danton, a GREAT guy. When he died after losing stuff suddenly in a fire ALL of ERB should have died with him.

  21. James Asia says:

    Does this mean CBR will stop having their covers on the site’s front page, negating the feeling I have of looking at porn at work?

  22. As i mentioned above, ERB is claiming “Common law trademark” on Lord of the Jungle, Warlord of Mars and so on. Do any of you IP lawyers reading this know if there is such a legal precedent on that? Seemingly, ERB had never trademarked them and Dynamite went ahead with their titles based on that search

  23. george says:

    http://www.comics.org/issue/888739/cover/4/

    “Near pornographic”? Can’t imagine what they’re talking about!

  24. This smells like Disney-style legal harrassment of a competitor, bet the lawyers are being paid for by Disney the better to snuff out Diamond Entertainment, whose works are much more true to the spirit of the books than anything anyone else is doing right now, most notably, Disney!

    That said, the books were written over a century ago, they should damn well be in the public domain! The folks at ERB need to stop leeching off old great great grampa Burroughs and get jobs!

  25. To show you the ‘thinking’ behind the people making the film; it wasn’t called “A Princess Of Mars” because they think that men wouldn’t go to see a film with the word “Princess” in the title and it isn’t called “john Carter Of Mars” anymore because they think women won’t go to see a film with “Mars” in the title…”

    Why didn’t they go the “Harry Potter & (insert story element here)” route?
    “John Carter and the Princess of Mars”
    then…
    “John Carter and the WarLord of Mars”
    …etc?

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