IOW, two attorneys have now told you that your contention that trademark gives permanent copyright and you can’t write the book you want is … completely wrong.
And the sun rises in the east in the morning.
Can you please critique this letter to the estate of Tarzan's creator? Long posts before the letter.
I did not bring up the perpetual copyright part there. However, on a de facto level, it does act as infinite copyright. I wonder if the estate is are aware of that and that it is forbidden by the Constitution. My guess is they are not and don’t care unless they were taken to court.
If the books go into public domain, meaning that you can publish and sell them without getting permission from or sharing money with the former owner, then there is no perpetual copyright. And you can do that with most of the Tarzan books, so there is no perpetual copyright on them.
The name in the title is not the point. You can’t use the TM character. You could write a book called Tarzan and the Accountants and as long as your book didn’t include the character Tarzan, you’d be good.
From wikipedia:
Note that the word “Tarzan” is not in the title, and yet permission was needed. Also note that the estate gave permission, that is they used their TM, which is necessary to keep the TM active.
It’s beginning to feel like that. “Perpetual Copyright” is not a magic word that makes TM law disappear.
I’m sorry that you heard that Tarzan books were now public domain (re: Copyright) and that you thought that meant that you could use the character. Then you discovered that the character had been TM’d, so that although the books were in the public domain, the character is not. I feel your disappointment. However, your disappointment doesn’t mean that the books have been given perpetual copyright. Your disappointment is because you discovered TM.
I agree that discovering that a character is TM’d is as disappointing as perpetual copyright would be, but that doesn’t mean that TM has created a perpetual copyright. The Dark Heart of Time, will also go out of copyright. Nothing the TM owner does can stop that. Perpetual copyright has not been created.
I’m sorry that you didn’t know that characters could be TM’d, but they can be and it doesn’t do anything to copyright. It does disappoint you, but then a lot of laws are going to to that.
It acts as a perpetual copyright and thus that is unconstitutional.
They are committing a constitutional violation that I intend to raise awareness off to where it needs to be addressed. At some point, a court-involved trademark termination is to be done.
Apparently it wasn’t, which is why it was changed. Your argument wasn’t compelling as to why these people and the companies should give up an intellectual property that they own. Perhaps it is because you are mixing and confusing trademark protection with copyright which is why it isn’t being made clear. But at the end of the day, it is something they legally own just like your car, house, real estate, comic book collection, your goldfish, etc., and it is within their administrative right for copyrights to control the works, collect a stream of income from it if they wish, or release it into the public domain. A trademark as pointed out is entirely different, such as McDonalds®.
You as a creative person, I see no reason why you can’t create your own new character which could very well be more successful than Tarzan ever was. Superman didn’t exist before it was created, but there are other characters in that genre. You aren’t being land locked in preventing you from creating more characters, trademarks and content within that genre.
If you are so stuck on the Tarzan thing, have you actually contacted them to seek permission to use it? If so, what did they want? What were their terms? For publishing if I were to want to expand on the Tarzan story, I wouldn’t be looking at go at it alone, I would want their backing.
You do realize that the US constitution only applies in the US? Even if you could get that to apply to the US based estate it wouldn’t apply to an estate like Conan Doyle’s which isn’t even in the UW.
And how are you going to get that to work for, say, Sherlock Holmes or Peter Pan or Merry Poppins or Harry Potter? The US Congress has no jurisdiction over them.
There is so much misinformation from so many directions in this thread, I don’t have the time and energy to address all of them. I can only leave it as almost everyone who is posting here is saying at least one thing that is significantly wrong.
You think a major trademark and copyright holder doesn’t understand or have good advice on the law? That’s crazy.
No it doesn’t and no it isn’t. Trademark cannot be used to create perpetual copyrights. The Supreme Court has said so. The estate’s trademark rights can continue to exist but they cannot be used to extend copyrights. That’s what the law says. The law does not say that trademarks must be eliminated in such situations.
No, it isn’t to be done and it won’t be done. Not without a major overhaul in trademark law, and that’s not going to happen.
Each country administrates its own intellectual property law. The U.S. constitution and copyright and trademark laws apply to Sherlock Holmes and Tarzan when those property owners try to exercise their rights in the United States. So U.S. law is very, very relevant to those situations, because they make a lot of money here.
Let me try to clear up a few points:
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If a particular Tarzan book is now in the public domain, then you are free to republish that work without getting authorization from anyone because there is no copyright holder.
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If a particular Tarzan book is now in the public domain, then you are free to prepare and publish derivative works of that work without getting authorization from anyone because there is no copyright holder.
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If the Tarzan character as a work protected by copyright law separate from the novel is in the public domain, then you are free to use that character in new works without getting authorization from anyone because there is no copyright holder. Note that the name, appearance, traits and other characteristics of the public domain Tarzan character can only come from the name, appearance, traits and other characteristics that have appeared in public domain works featuring the Tarzan character (or new ones that a new author has created).
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If the Tarzan character as a work protected by copyright law separate from the novel is in the public domain, then use of his name or public domain appearance, traits and other characteristics do not and cannot be limited by trademark law.
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If the term “Tarzan” or a particular rendition or version of the Tarzan character is nevertheless still a valid trademark (which is possible because trademarks can be perpetual), then you have to find the boundary between trademark uses and valid uses of public domain creative works of expression. That might mean that you can’t have the term “TARZAN” splashed across the front of a novel, or that you can’t use a particular rendition of the Tarzan character on the cover. This might be a tricky line to find, but what it does NOT require is complete elimination of the Tarzan trademarks. It is even possible that the Tarzan trademark holder can’t stop the use of the word “Tarzan” appearing in titles, but that still doesn’t mean that all aspects of the trademark are necessarily eliminated.
On SCOTUS addressing TM and mutant copyright: invispress.com/law/copyright/dastar.html
They are somewhat silent on the issue I brought here.
I count character in IP under copyright and TM protection. To be a genuine public domain character, he would be free from both restrictions by the estate. The case where I find a TM acting as a perpetual copyright being remotely legal is if he was a generic TM but an indication your version is not endorsws by the estate should be given.
Also, the USPTO has many foreign TM and I would imagine they could be rejected just the same/a similar way as a domestic TM could get rejected.
You can advocate this position if you like but when you state it as if it reflects the current state of the law, you’re just plain wrong.
This is gibberish.
I don’t know what you mean by “foreign trademarks” in this context. Even in the limited case of “well-known” trademarks, you have to show that American consumers view the relevant word, phrase, symbol, etc., as indicating a specific source or origin of goods and services in order to have any trademark rights—registered or unregistered—in the U.S.
I can’t say what I want to say, so I’ll just say that you are all wasting your time engaging with the OP.
The movies are “incredibly unfaithful” to the source materials that you already admitted you haven’t read?
He also admitted that he hasn’t even tried to write anything. So this is all purely hypothetical.
Fritz Leiber also wrote an authorized Tarzan novel, and the name of the character is in the title. Tarzan and the Valley of Gold.
What’s kind of sad is that the writing is better than anything ERB ever managed.
Hey, it’s pretty entertaining here in the peanut gallery.
How hard do you want to get? Kadmos1, here’s the case that fully addresses your issues: Meads v. Meads, 2012 ABQB. I encourage you to read it very carefully, and apply it to your self-analysis.
For the rest of us, unlike Kadmos1, who like to read Tarzan novels, and as James Monaco would put it, read Tarzan films, here’s a scene from Tarzan and his Mate,in which Weissmuller and O’Sullivan go swimming, with Jane illustrating what was wrong with the Hays code(that means she is not wearing anything, Kadmos1, so in accordance with the modern SDMB Hays rule, we have to make you press a few keys before you can watch the scene despite it causing you to get hard, your eyes to burn and your mother to walk in on you and ask if you are OK),[spoiler]au natural[/spoiler]and here’s a chart for you, Kadmos1, to try to figure out if the scene is or is not under copyright so you can then run your arguments (or as Acsenray so eloquently and accurately puts it, your [gibberish
[/QUOTE]
"]gibberish](
[QUOTE=Acsenray;20082220)) through [Meads v. Meads]
(https://www.canlii.org/en/ab/abqb/doc/2012/2012abqb571/2012abqb571.html).
I don’t know when but I do plan on reading some of the original Tarzan books. Don’t worry, the only time I would use “Tarzan” in the title (outside of what a court or attorney deems fair use) is when SCOTUS says the legalese version of the following (in other words, pretty much never):
"Copyright restoration (or rulings that would act as copyright restoration, especially the Abend ruling) of a foreign or domestic work is unconstitutional. As such, if a work that is in the PD, it stays there even if its underlying material are still copyrighted. For example, if a TV episode has material from still copyrighted source material (like an earlier TV episode), that PD episode and all the material in that episodes stays in the PD.
Next, the Constitution’s ban on ex post facto prohibition applies to civil and criminal. As such, retroactive copyright extensions and protections are also unconstitutional. So, pre-1972 sound recordings are treated as public domain in federal and state levels. Derivative works are permitted but there must be a note on the label description telling which parts are derivative works.
Next, TM of a public domain character does act as perpetual copyright. This brings us to the next point to the following: when a creator made a book series and the last book they wrote, while alive, for that series lapses its copyright here, all TM tied with that series (such as an image, name, or even sound) also expire. From that point, the creator’s estate or successors are not allowed to make a derivative work and make/re-file any more TM related to that series. Any licensing company now owns those but the TM are to be treated as generic TM. The public should acknowledge the original creators on the cover of the creative work.
Finally, a TM on a character that is whole or partially copyrighted here (from its source material) can only be trademarked when secondary meaning has been obtained. In this case, secondary meaning applies only to the original creators. Not achieving secondary meaning bars a TM of the character. Should a TM on that character be made by a holder who is not the original creator or the immediate successor of the original creator, a TM termination happens at first available moment. From there, the non-creator holder is forbidden from ever using a TM relating to that character."
Suppose I am ordinary, reasonable, and prudent, and that I am open to believing the bolded sentence but am unconvinced that constitutional law agrees that the statement is true. What evidence could you provide that might convince me?
While I don’t have legal evidence per se, I am applying the definition of ex post facto in that’s retroactive. Since the Constitution doesn’t specify, one could say it is both civil and criminal. Then again, many of the posts are being done by non-lawyers (like me). The long quote is purely hypothetical.
Be it my rants here or others, all the posts here do have valid points but I am obviously biased with mine.