- Posted by Johanna on February 20, 2012 at 7:48 pm
- Category: Comic News
Dynamite Entertainment/Dynamic Forces has been sued by Edgar Rice Burroughs Inc. for trademark infringement and unfair competition over its comics Warlord of Mars (based on John Carter of Mars) and Lord of the Jungle (based on Tarzan). They’re also suing for “deceptive trade practices” and dilution under New York law.
ERB cannot sue for copyright infringement in the US because seven of the original Tarzan novels (out of 24; those published before 1924) are now in public domain, but the company still owns and defends the trademarks. (That’s why the comic titles don’t use “John Carter” or “Tarzan”.) Five of the 11 John Carter novels are also in the public domain. ERB is asserting that the comic books bear “identical or confusingly similar marks”. That’s the purpose of trademark, to prevent customer confusion. ERB owns “Tarzan Lord of the Jungle” and “John Carter Warlord of Mars”, so they’re arguing that the truncated phrases are too close, leading customers to “mistakenly believe” that the comics “come from, or are otherwise sponsored by, affiliated with, or approved by ERB”. ERB is also asserting that since the books are protected by copyright in the UK, the comics should not be distributed in foreign jurisdictions where the books are still protected under copyright.
If there’s a smoking gun in this case, it’s that the comic company met with the trademark holders asking for permission to do comics based on the characters, even though at that time Dark Horse had the comic license. Dynamite was turned down and proceeded anyway. While I think novels that were written literally a hundred years ago should be in the public domain, suitable for reuse, and using trademark protection to prevent that is a form of cheating, it also doesn’t make sense to me to bait the bulldog by effectively asking for permission and then saying “you won’t let me? I’m going to do it anyway”. (In legal terms, that appears to support the ERB claim that Dynamite’s infringement was “willful and deliberate”.)
ERB is also upset that “some of the covers and comic panels inside defendants’ Warlord of Mars: Dejah Thoris [spin-off] series border on (and in some cases are) pornagraphic.” They’re referring to the nude covers that have been released, which they feel could damage their reputation, if customers think that these are official products. They also criticize her “greatly exaggerated feminine features”, which appears to be legal code for “breasts”. It’s very easy to find examples of these covers, which resemble porn movie posters, although I’ve made them site-safe.
It’s hard not to see the hand of Disney in this. They licensed Tarzan from ERB for the 1999 animated movie as well as a musical based on it. They’re also the ones putting out a big-budget John Carter movie next month and having their comic company, Marvel, release tie-in comics. The Dynamite books directly compete with those products. That the Disney products are meant to be appropriate for kids while Dynamite is putting out work that resembles soft-core porn is likely unacceptable to them.
If ERB doesn’t prevent this use of their characters, then why would anyone else in future give them money to do so? ERB is asking for Dynamite to be stopped from infringing, to recall all their comics from sale in the UK, and to pay ERB their profits plus triple damages (amount unspecified), costs, and fees.
ERB is mostly owned by the original author’s grandchildren and great-grandchildren, which leads to the theoretical question of how long heirs should be allowed to profit off of their ancestor’s creative work. In the bigger picture, this situation of the books being public domain in some countries but not others demonstrates how complicated operating in an international marketplace can be. More disturbingly, if trademark ownership is perpetual, does public domain for famous novels mean anything? Will anyone risk building on those works in future?