I just spent about 10 minutes Googling and I can’t find any evidence of this being something they’re fighting.
Cite?
Can you please critique this letter to the estate of Tarzan's creator? Long posts before the letter.
Clarification: you can legally use Tarzan characters based on the public domain versions but you can’t really use the character names in the book title. As such, Trinopus may have a point. An exception could be the situational nominative fair use. For example, if you write a fictional story about someone that inspired Tarzan, you might put a byline on the cover saying “the untold and untrue story of the man who inspired Tarzan”.
In terms of that 1880s home, the difference is the home is more of a physical property, so I think intellectual property can be harder to compare. Oh, and in terms of likelihood of confusion, my books would say “[character name] and [event]”. Below that “original concept: [original creators]” which would be above “this version: [creator names]”. At the bottom of the cover page, it would say “the estates of the original creators were not involved with this story”.
Debillw3, look at my points above. To further clarify my points, I feel that once all the completed Tarzan novels originally written by Burroughs lapse their copyright in the USA (that would have been on 12/31/2020), all other connected copyrights and trademarks expire. From there, this estate is not allowed to make any more copyrightable works of Tarzan-related characters (same goes with trademarks). If they did and my idea was put into place, they would be charged with public domain infringement (similar penalties to copyright and trademark infringements).
The same applies to their licensing clients (movie studios, publishers, etc.). The public would need to simply to credit the original creators (similar to the 2nd paragraph of my previous post).
Says who?
The point of Trademarks in general is marketplace confusion. Companies have a proprietary interest in making sure their brands are treated to their standards. For example, if someone published a book entitled “Tarzan Shits on Everything and then Gets Shot”, that could conceivably turn people off the brand. So they license the character (through Trademark law) to ensure that doesn’t happen.
Any story in the public domain is one they already signed off on. It doesn’t matter if there’s “brand confusion” because it’s their product. They have no proprietary interest within the realm of Trademark law to ensure that public domain stories are republished without the original title, and I don’t know of any court that, if they did pursue it, would grant them that right. As such, people in general aren’t dumb enough to pursue that claim.
So, again: cite?
I have. A majority of them are wrong & have no basis in law.
And I feel that you should give me $500,000. Unfortunately for both of us, the law doesn’t care about what people feel should happen.
Of all the things you said, this has the least basis in reality. Copyright is conferred at creation; registration is not required. Anyone who writes a story about anything, Trademarked character or not, automatically holds the Copyright to that story unless they deem otherwise. Registration provides additional benefits in an infringement case, but is, again, not required.
The definition of “public domain” precludes that from being a thing.
Debillw3, concerning citations, the 2nd paragraph of my opening post here is an example. The “clarification” part is from sites I have read about trademarks and talking to a comic shop owner who showed me a comic that said “inspired by [some band]” (not the exact words). Also, why my points may have few if any basis from a legal standpoint, I am approaching from a de facto standpoint. That is, a practice that actually exists but may not be legally recognized.
If the estate is concerned about likelihood of confusion, then the corporate level can also be faulted.Disney a number of register trademarks for “Winnie the Pooh” and this includes movies. Warne said that “[a] character deemed an artistic creation deserving copyright protection…may also serve to identify the creator” (Carlise par. 9). Well, British author A.A. Milne is the creator of Pooh and artist Ernest H. Sheppard made the original visual depiction.
Are you under the impression that the comic you’re talking about didn’t have the permission of the band in question? Or that the band even has a relevant Trademark in the first place?
The whole point of Trademarks is that licensees don’t need to scream “HEY WE HAVE PERMISSION!” It’s implied by virtue of you selling it and not getting sued. It all goes back to the whole “brand confusion/endorsement” deal.
Your points aren’t legally recognized because they run contrary to the law, not because you came up with an argument that Lawrence Lessig couldn’t. (Quasi-relevant.)
All I have to say to any of this, and don’t take it the wrong way, is “and”?
None of this serves to contradict any point I’ve made, and, more importantly, none of it serves to back up your point.
How well do you, Kadmos1, know the works of ERB, or in particular Tarzan? Could you truly write a good Tarzan story, one that could be taken as the work of ERB?
And if you can do all that, why do you want to? You could write your own works. Your trouble is you want to ride on the coattails of a successful author, having let him set the stage for you. That’s lazy.
If they could do that, they could probably get the permission to do it, as mentioned up-thread.
Trademark isn’t “we can use this and nobody else can”; it’s “we can use this and nobody else can without our endorsement”.
If you have something of high enough quality that promotes the brand as they see fit, you can get the endorsement. Threatening legal action & calling them criminals won’t get you to that point.
I have not read any Tarzan novel yet but am using that as an example. I plan to do similar letters to the Conan Doyle Estate and the company that owns Zorro. Baker, your second point could also be applied to these estates. Is that it hard to accept the fact there this idea that everything has to become public domain someday?
You still plan to send these letters? Seriously?
There is not one post on this thread telling you that you’re right on the law & plenty telling you that you’re not–from multiple people. That should tell you something.
Is it hard to accept the fact that there’s this idea that you should give me $500,000?
People have ideas about all kinds of things. No entity has an obligation to kowtow to those ideas simply because people hold it.
If you’ve never read a Tarzan novel, what makes you think the ERB estate would entertain giving you permission to write a Tarzan novel? One of the proposes of copyright is to protect the property and keep it from being cheapened by anyone who is not capable of handling it properly. That is why companies have the right to control their property and not let it go into the public domain.
They don’t–that’s why they’re asking them to give up their rights instead of for permission.
Trademark
Trademarks exist for brand protection, Copyrights exist for plagiarism & piracy protection.
Whatever. ERB’s estate isn’t going to give either one up that readily.
This link here is a similar argument to what I have been saying: http://lesliesklinger.com/2016/12/shameless-website-conan-doyle-estate-limited/. It was written by Sherlock expert who practices law, estate planning, and business. Since it is coming from a professional, it should carry more weight.
Ok, a couple of things:
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Lawyers aren’t automatically right on the law. I’ve seen lawyers make terrible legal arguments and I’ve seen them get laughed out of court. So, no, appeal to authority doesn’t add more weight to your argument.
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That whole argument you linked is entirely predicated on CDEL not owning the Trademarks. As that’s a distinction between your argument and theirs, that makes them completely different arguments.
In fact, their whole goal is to prevent CDEL from getting the Trademarks (presumably) because they know they’re SOL if that’s achieved.
They don’t need to give up Copyright–it ends on its own (and, in some cases, already has).
Despite the OP’s insistence, it has nothing to do with the topic at hand though.
No, my point is that there has to be a point where they lose all rights to a book series (Tarzan here). Trademark does act as a perpetual copyright (for all intents and purposes).
And that difference completely invalidates your example.
Tarzan is legally trademarked. Trademark law applies. Tough luck for you.
If you put this amount of effort into creating your own characters instead of ignorantly arguing from a vacuum, you wouldn’t have to worry about Tarzan. This tells me that you don’t have enough confidence in your own creativity to succeed even if the estate allowed you to.
BTW, the Conan Doyle estate does hold a trademark on Sherlock Holmes. If you actually read what your citation says, it’s complaining about someone who falsely claimed the trademark, but did not own it.
Legally trademarked does not justify a perpetual copyright which is clearly illegal.