Is There Such a Thing as Public Domain Any More? Dynamite Sued Over John Carter, Tarzan Comics

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.

Warlord of Mars #7 coverWarlord of Mars #11 coverWarlord of Mars #13 cover

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?

23 Responses to “Is There Such a Thing as Public Domain Any More? Dynamite Sued Over John Carter, Tarzan Comics”

  1. Comic Book Critic Says:

    What scares me now is the fact that the Supreme Court ruled that Congress has the authority to pull works back from the public domain and re-copyright them.

  2. David Oakes Says:

    With some of the books still undercopyright, then trademark has to be protected for their sake. If I have recognized ownership of Part II, letting people do whatever they want with Part I does harm the value.

    The fact that any of the books are still in copyright, and that copyright will now live longer than even the creators would, is a subject that is as seperate as it is shameful.

  3. Jim Kosmicki Says:

    the key word here, as it always seems to be when this issue comes up, is Disney. The company that built its empire on public domain works simply can’t abide by the thought of any of its works going public domain.

    ERB, Inc. may be suing, but since Disney is the only company that’s done anything significant (read, lots of money and publicity) with any ERB characters in 20 years, it’s easy to see the Disney tentacles in this. Disney understands that in the court of public opinion, a family company suing over their grandfather’s legacy is going to be more sympathetic than the mega-corporation.

    but as has been pointed out in other venues, you have to defend your trademark rights vigorously. Was the straight to video “A Princess of Mars” movie with Traci Lords sued for infringement last year?

    given the difficult track record that John Carter has always had in comics, it almost looks like sour grapes to sue the one company that seems to be having success with the character.

  4. Comics A.M. | Order of the Stick and the $1 million Kickstarter model | Robot 6 @ Comic Book Resources – Covering Comic Book News and Entertainment Says:

    […] Legal | Johanna Draper Carlson looks at the Edgar Rice Burroughs Inc. lawsuit against Dynamite Entertainment, and questions whether the indefinite term for trademark rights means that copyrights never really expire. [Comics Worth Reading] […]

  5. Brent Stewart Says:

    I’m not defending the artistic merit of the topless covers (some of them are very nice, most of them are fairly amateurish) but I do find the complaints about nudity amusing considering that everyone in the novels is naked all of the time. No such luck with the Disney movie, I guess…

  6. Tom Ramirez Says:

    In the beginning, a creator in the USA had 28 years to make money off his work before it was forced into public domain. As a creator, I see no problem with the law as it originally stood. Besides, the best way to perpetuate your ideas is to let as many people control it as possible, including pirates and infringers. Sure, I want to make a profit first and foremost, but 28 years is enough time.

  7. sean Says:

    You ask a valid question as to how long can the heir to a famous cartoon,novel or even a popular movie creator profit off their works.Well I have a question that is pretty similar to the one you just asked if not a little different.First a statement on my part.You bring up the whole Public Domain thing.

    If this Public Domain thing was enforced for a certain time period of ownership, then would that not mean giant corporate companies such as Marvel Comics and Dc Comics and all other businesses that create cartoon or novel creations eventually fall under the category of Public Domain?

    Why is it not the case when it comes to the super giants who own their businesses and make a profit? It wouldn’t make sense if they lost the rights to their creation due to the changes in the copyright law that now allows the creators of music,art and all other creation to have ownership indefinitely.

    The best examples are the banks and corporate companies that have been around since the 1930’s if not the 1920’s who have all managed to keep ownership of their business name and even famous trademarks that they have come to be known by.

    I’m a comic book cartoonist and a comic strip artist slash writer,colorist and I ink my own works.When it’s my time to leave I would be happy knowing that the my kids and family will have the rights to my creations and that this will be for many generations.

    I have no problem with this and the way the copyright law and trademark works is that you keep them up to date.Of course the copyright last longer then the trademark.I already got my works copyrighted so I’m set.That’s my say in this conversation.

  8. Rivkah La Fille Says:

    I actually think that copyright law would be better off reflecting trademark law in terms of how long its controlled by the original owners: there is no expiration date for a trademark, but if it falls into disuse (and there are various criteria to determine what constitutes “disuse”), then it essentially renters the public domain. So books that become out of print would enter the public domain but a book that remains in print and continues selling well through the lives of the original creator’s heirs would remain copyright protected.

    Seems so simple, and something like it may very well happen when Disney’s older properties come up for expiration again.

  9. Rivkah La Fille Says:

    Btw, this lawsuit has been wonderful at expressing to creators the differences between trademark and copyright. The two are so often confused! But there is a HUGE difference between placing somebody’s registered trademark on your comic book page when it isn’t commentary (such as a McDonalds sign in the background, or in this case, the TITLE) as opposed to adapting content. Video games have been sued over this many many times, but if somebody wanted to go and make a Pride & Prejudice video game, they’d be okay as long as Mr. Darcy doesn’t have a Big Mac at Burger King before he heads over to woo Elizabeth.

  10. Brian Clopper Says:

    I never got why people feel entitled to work on creations of others. Why is there such a thing as public domain? With media mining works that are older and older, shouldn’t the ownership stay with the creator longer than 28 years? It seems a little short-sighted and not at all beneficial to a creator. I personally think creations should be credited to their creator for as long as the creator or their heirs see fit to retain the copyright.

  11. Jaylat Says:

    Brian, I totally agree with you. If ER Burroughs built a house for his family, no one would argue that they would have to give it away after 70 years. But when Burroughs spends that same time writing a novel, his heirs lose control over it. Why is that?

    It seems so arbitrary, especially now when intellectual property is such a large part of the economy.

  12. Johanna Says:

    The public domain exists to foster creativity. Good stories can be told about characters we’re all familiar with, giving works a richness and referencing a shared cultural history. Here’s more information:

  13. Jaylat Says:

    Johanna, thanks for the link but the article is just a diatribe without any facts to back it up. The author would be much more convincing if he conceded some of the very valid points Halperin made.

    And we can’t use “characters we’re all familiar with” because they are trademarked (as you point out) even though Burroughs’ works are in the public domain.

    A good case could be made that the public domain actually reduces creativity, as it takes away any incentive to promote the works. Economics tells us that lowering the price to zero can actually reduce the supply of a commodity by eliminating the incentive to produce it.

    Anyway, I don’t pretend to have all the answers. However it does seem to me that a system that protected the actual complete works while allowing others to use the concepts and characters (essentially the opposite of what we have now) might be preferable.

  14. Steelbolt Says:

    What I want to know is, even if one person creates one idea–can’t that person just keep the idea if they don’t use it for some period of time? I believe in keeping whatever you concieve or buy for good–no catch. You wanna share with everyone, open a museum–that’s what Paul Allen did.

  15. David Oakes Says:

    Trademark is the “house” that ERB built. As long as the family is living in it, maintain the grounds, they reap the benefits. But if no one in the family has been by in a generation, if the land lies fallow, then yes, other people can come in and try and make a go of it.

    Copyright is the plans for the house. Everyone agrees that is an Architect designs your house, he should get paid. But at the same time, no one should be kept from designing a house with a specific number of doors or a cupola over a bay window just because someone else thought of it first. Much in the way that the Patent on the Better Mousetrap eventually disolves so that everyone can see how it works and try their hand at designing the Better Better Mousetrap, so too does Copyright eventually fade to let other people see what they can do with “English Lord raised by Apes”. (Naming your comic after someone else’s character is a bit obtuse, but the ERB Heirs would be obliged to defend themselves against any use of “Half-naked Princess of Mars” stories as well.)

    In the end, like so much of life, it is a balance between the value to the Individual and the value to the Collective. If anyone could advertise their work as “Shakespeare’s Romeo and Juliet”, the Shakespeare would think twice about ever publishing. So we give him some breathing room to try and make some money off of his “new” and “unique” idea. But if no one were ever again able to write a tale of “Star Crossed Lovers” because Shakespeare held the rights, then eventually nothing would get printed that didn’t already exist, and no one would make money except the people who already have money. So after a “reasonable” ammount of time, we say “Thanks for your contribution, we really appreciate it, but it is time to get off the stage and make way for Alan Smithee’s Romeo and Juliet.”

    Of course, how broad “Star Crossed Lovers” or “Half Naked Princess of Mars” has to be to truly defend the Individual’s rights of ownership, and how long is “reasonable” is what makes horse races.

  16. Atomic Kommie Comics Says:

    “Economics tells us that lowering the price to zero can actually reduce the supply of a commodity by eliminating the incentive to produce it.”

    How many unlicensed Sherlock Holmes movies, comics, books, et al, are available?
    He’s PD in the US and seems to be selling better than ever!

    There’s a plethora of Jane Austin-based books and movies ranging from updated versions to Elizabethan zombie-hunters!
    And the original works are all PD!

    The original Dracula and Frankenstein novels are PD.
    Do you have any idea how many tales in every conceivable media (almost all unlicensed from the Stoker or Shelley families) have been produced?

    In all those cases, are there any cries of “Give Austin’s, Stoker’s, Shelley’s, and Doyle’s families a cut of the profits from these current works by new creators!” ?

  17. Marc-Oliver Frisch Says:

    Looks more like a pubic-domain issue to me. (Arf, arf.)

  18. Johanna Says:

    Jaylat, in practice, the price of popular music has been lowered to 0, and there’s more of it than ever. Creators don’t need more incentive; many people write or make art without getting paid. I do like your idea to basically legalize fan fiction, though; that’s how it seems to work more in Japan, with many manga creators getting their start through using other people’s characters before moving on to their own stories and cast.

    Steelbolt, ideas aren’t copyrightable; the expression of those ideas is. So I can’t prevent other people from writing a story about an alien who comes to earth as a baby and learns to fly to help others, but I can copyright Superman (although he had a lot in common with another novel, so good thing people weren’t as litigious then as they are now).

    David, you’re reminding me of Spider Robinson’s excellent story Melancholy Elephants, which describes an intellectual property battle in the near future. It shaped a lot of my thinking on this subject.

    AK, great examples.

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  20. Ralf Haring Says:

    People actually argue for perpetual copyright? That’s just laughable.

  21. David Oakes Says:

    um, “A Modest Proposal”.

    One thing that I think it getting lost in the “Disney’s Alice in Wonderland” and “Pride and Prejudice and Zombies” side of the argument is that Public Domain doesn’t just allow you to write a version of “Romeo and Juliette” where everyone lives. (As Garden Gnomes.) It also allows you to publish the work whole cloth.

    As long as the work is an on-going concern, it is likely to remain in print to make money for the rightsholders. But when a work is no longer making enough money to be “worth it” for the rightsholders, it gets locked away. Much like the second season of “Fantasy Island”, Swift’s “A Modest Proposal” may not make a lot of money, but it is a work that desreves to be read, and that the public should be aware of.

    And we are back to the “Pirate as Curator” argument…

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