Can you please critique this letter to the estate of Tarzan's creator? Long posts before the letter.

In My Humble Opinion
1

I plan on e-mailing to the estate’s boss about how a trademark on Tarzan acts as perpetual copyright. I was not given a cease and desist but am wanting to give them a mouthful. I will send it to them once it has been put in more legalese language (this includes consulting law professors or attorneys).

Officer of Copyright at Nova Southeastern Univ., Stephen Carlisle, wrote a 10/17/14 article called “Mickey’s Headed to the Public Domain! But Will He Go Quietly?”. He mentioned that while the first 21 Tarzan books are public domain in the USA, you are not seeing any rival stories about the ape-man by other authors because the creator’s heirs planned ahead and put a trademark on “Tarzan”. This means that, outside of fair use situations, you cannot make a story with “Tarzan” in the title without the estate’s permission.

Carlisle added stated that a trademark on a public domain character seems to grant a perpetual copyright. However, not all such characters qualify for a TM. Frederick Warne & Co. v. Book Sales Inc. was the only case (at that time) he found that gave a properly addressed on this. The case said a PD character qualifies for TM protection if they have achieved “secondary meaning”. This means that a person immediately ties the character with its source. Heck, often times that character can serve as the source’s mascot. Outside of Mickey Mouse and Bugs Bunny being said mascots, Superman is the DC Comics official mascot and Spider-Man acts the same way for Marvel Comics.

Just because corps/estates lobby Congress to extend copyright, the feds shouldn’t forget what the Constitution says. Also, there is a ban on retroactive laws being passed (ex post facto) and those copyright extensions (on select Burroughs stories that would have expired years) do violate that, I say. Heck, if 2/3 of Congress agreed to it, overthrow the 1998 Copyright Term Extension Act.

"Attn: Edgar Rice Burroughs, Inc.
I am writing to inform you that several of your titles are being used in a manner that is arguably illegal. First, I have to explain how copyright is supposed to work in this country, as the issue is tied to that.

American copyright should work like this: a creator is to be given an adequate financial incentive to create and continuing making works that will someday enter the public domain. To promote progress, one can reproduce some ideas but should also incorporate some of their own ideas into it. As such, a mere copy does not inspire creativity which is copyright restricts mere copying.

If the public does their end of this social contract but a creator does not let a copyright expire, that creator essentially steals the work from the public domain. Just as copyright infringement is, save for fair use, theft of private property, what you are doing is stealing from public property. There are a few other ways that companies, estates, and individuals commit this type of of infringement. This includes placing a trademark on a character that should be public domain or that has versions in the public domain (a sound, image, or name), false claims of copyright, retroactive copyright extensions, and copyright restoration.

This is where my letter comes in. You have many trademarks on many Burroughs characters and these act as a perpetual copyright. There is also a 1st Amendment issue with the public being barred, outside of nominal fair use, from using the Burroughs character names in the title. They should be able to put a character name in the title if they include “original concept: [creators]” and “this version: [names]” on the title page.

So, what you are doing is immoral in the sense of it violating the Copyright Clause’s mandate on limited duration. While SCOTUS may not see your actions as perpetual copyright, for all practical purposes it is exactly the same. If you are to cry foul for someone putting the 2016 movie onto YouTube, then this estate has, in a way, committed “copyright infringement” as well. That is, you are infringing against the Copyright Clause intentions and public domain infringement.

So, why do this? You have obtained more than enough royalties. My point is that it’s not really “public domain” (more like, semi-public) if an estate is still allowed to make money off it. Once all the Burroughs’ Tarzan stories lapse their copyrights in the USA, you shouldn’t be able to legally profit anymore from the work. That is, all trademarks on everything related to Tarzan should lapse and you should not re-use them at all.

Source: Carlisle, Stephen. “Copying Is Not Creativity! Why Creative Artists Don’t Need the Public Domain.” Nova Southeastern University Office of Copyright. Office of Copyright B, 27 Feb. 2015. Web. 13 Mar. 2017. <copyright.nova.edu/copying-is-not-creativity/>."

So, what should I add to the letter?

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Copyright is a separate issue from trademark.

3

If you’re uploading a 2016 Tarzan movie onto YouTube without permission, then you’ve committed copyright infringement and the copyright owners are well within their rights to take action against you. Your analogy here doesn’t help your argument at all (if anything, it weakens it).

As to the rest of your letter, I’d suggest that you would be more effective by staying away from legal and constitutional arguments, as they don’t exactly support your proposition. If I were the legal counsel for the estate (the copyright owner), seeing letters from non-lawyers making legal arguments based on sources they don’t really understand would just make me roll my eyes. If anything, your letter would be more effective if you simply cite practical and moral reasons to support your request.

Lastly, if your goal is to persuade the copyright owner that Tarzan should go into public domain, you probably don’t want to cite an article titled “Why Creative Artists Don’t Need the Public Domain.” It doesn’t exactly help your case.

4

The only worthwhile critique of your letter is this: now that you’ve vented your spleen, stop. Your legal understanding is negligible. You continually confuse copyright and trademark. Your moral argument has no place in a legal argument.

It’s legitimate to want changes in laws. However, only Congress can do that. If you to add you name to the numerous people who want to change the copyright laws, go ahead. If you want to overthrow the entire trademark system, that’s the only place to complain to. Why you think the Burroughs estate should help you, though, is beyond my comprehension.

I also don’t understand what your objective is in having Tarzan lose its trademark. Do you want to write fan faction about Tarzan? It’s everywhere. Tarzan porn? You can spend all day watching. Want to put a Tarzan book on Kindle? There are hundreds. What do you want to do that you can’t do now? If you pursue this, you need to make that part of your case.

5

You’re going to send them a letter explaining how you think copyright and trademark law should work, and you expect them to…what exactly?

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Moderator Action

Since this involves opinions and legal issues, let’s move this to IMHO (from GQ).

As always, any legal advice you receive on the SDMB is just the opinions of some folks on the internet and should not be taken as the equivalent of professional legal advice.

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The point is I am trying to point to them they need to learn to let go. If I was an attorney and part of a prestigious law firm, I would take them to court for it.

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The point we are trying to point you to is that you can’t take someone to court for actually following the law of the land, which they are doing.

You are mixing up legal concepts with other legal concepts, and mixing that muddle up with moral opinions on what is best for a business to do with their own (popular, but still their own) intellectual property.

They don’t care about fans. They don’t care about your opinions of them. And as long as the laws are the way they are, they don’t HAVE to care. Your letter as written will not make them care. You need an angle that convinces them (with accurate and competent business and legal underpinnings and good sense) that being more free with their IP will make good business sense for them in the long run. I don’t know if that argument exists, but your letter as it is - that ain’t it.

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No, you wouldn’t, because if you had such training you’d understand why you would not be successful.

And just to highlight an area of confusion you have that isn’t tied to copyright or trademark law: the Ex Post Facto Clauses prohibit Congress and the states from passing criminal laws with retroactive reach. See Calder v. Bull, 3 U.S. 386 (1798). There is no ex post facto clause prohibition against retroactive application of copyright or trademark law.

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Calder v. Bull may have said it applies to criminal laws, but there is a technicality (not necessarily legally speaking). A civil offense is a type of crime. Also, the ex post facto prohibition mentions neither criminal or civil, so it could technically apply to both.

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Good business sense to them? They have had over 90 years of gaining royalties from the Burroughs catalog. They need to learn to let go. It’s called “public” domain for a reason. At some point they have to lose all rights to Tarzan where they cannot make any trademark or copyright-eligible work from it.

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They “have to”?? Why do they “have to”?? It might be a nice idea, but you need to make an argument on the basis of laws as they now stand. They are the ones that get to decide whether it makes good business sense.

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I am going on the angle not on what makes a good business but rather adhering to the spirit/letter of the Copyright Clause. Then again, that argument in a court is likely to be struck down.

Another problem is even if I did find some court case that ruled against trademarks being used as a perpetual copyright (Dastar case don’t count) and a majority of Congress agreed, it’s getting SCOTUS to agree with that. However, since both groups have done decisions benefiting estates/corps, it’s almost too good to be true.

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Might be easier to come up with your own character and story line.

Does the world really need another Tarzan adventure?

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I mean, I haven’t seen “Tarzan Goes to Walmart” yet.

16

Yes, the world does need my Tarzan versus the Daleks nobel.

17

I have no problem coming up with my own characters, beyond making them unique. However, I would also make Tarzan stories.

18

What not just make your stories about a white man in a loincloth who lives in the jungle, without using the name Tarzan?

19

Nobel, huh?

I look forward to reading it.

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Well, let’s see, there’s the 1st Amendment issue of not being to use Tarzan in a title. I would clearly list this story is not from the estate and list ERB as the original creator. That should be enough.