Debillw3, I think you’ve done a very good job of explaining the difference between copyright and trademark. I understand it now. If I sounded rude before, I apologize. I have definitely learned something, and that is the purpose of this board. Thank you very much for your patience in explaining the various laws. It is appreciated.
Can you please critique this letter to the estate of Tarzan's creator? Long posts before the letter.
Thank you!
I will warn you that I did oversimplify it a bit (for example, Trademark infringement with a giant warning that says “No endorsement from TM owners received or implied”, or credited the way the OP suggested earlier in the thread, is still Trademark infringement, even though it doesn’t, on the face, imply any connection to the brand in question).
There’s also a lot of gray with regard to what can/can’t be done. Companies can claim more rights than they actually have & judges can rule against you, even if you think you’ve followed the guidelines.
What I’ve said here is more of a general overview.
Basically, to sum up Trademark infringement:
If a reasonable audience comes away from your work and says “That struck me as derivative of [Trademark]”, then you’re most likely good.
If a reasonable audience comes away from your work and says “That was a(n) [adjective] [Trademark] [movie/book/song]”, then you’re probably in trouble.
YMMV.
Before anyone goes to further trouble trying to get our friend to understand, I suggest give some thought to the idea that he doesn’t understand because he doesn’t want to understand. There is nothing you can do or say that will get him to let go of his erroneous notions.
Let him write his letters. Enough time and effort has been wasted here already.
The problem is that a term of art like that doesn’t necessarily have a meaning that tracks with its literal translation.
Habeas corpus, for example, is one of the most useful writs at common law. It allows a court to determine whether the custodian of a person has lawful authority to detain the person. But its literal meaning is simply, “You may have the body.” I hope you understand that courts should not begin treating habeas corpus petitions for freedom as invitations for jailers to keep the body. A motion in limine is not one that is made on the threshold of the courthouse, as the phrase’s literal meaning suggests, but simply outside the presence of the jury, or before the trial.
These terms are not understood correctly by simply translating the Latin words, you see.
I have.
In all honesty, I don’t think there’s anything more that I can say to him–it really doesn’t get much simpler than I’ve already made it (at least IMHO).
That said, the OP isn’t the only one who stands to stumble across this thread. I would hope that, by now, anyone who read it would see that he doesn’t have a point, but that’s not necessarily the case.
As I mentioned earlier, my posts for are for those people, not the OP. “Fighting ignorance” and all that. We don’t know how many others have the same thoughts as the OP–maybe they’re less stubborn.
But, like I said, short of a topic drift or direct question, I don’t think I can say anymore than I already have.
But that’s just me–others may have more luck or better ideas of how to explain the situation.
I understand that TM protects brands. But when it’s something that is based off of a series over 100 years and prevents others from legally using that title, well, the estate should lose all rights.
As far as me not wanting to understand, perhaps that is the case. Then again, I think the estate has had long enough to profit.
Another Carlisle article “Claiming Copyright in Public Domain Works: It’s Time to Put an End to Publishing Sleight of Hand” (from 8/27/14) has this point:
“I am as pro-copyright as they come. Anyone who has read my blog posts understands this. But enough is enough. Copyrights last for a very long time, and once you have had your run, that should be it. Aggressively trying to exact payments for something that is clearly in the public domain should not be tolerated at any level of this business. In fact, it only increases the ill-will towards the notions of copyrights in general, and makes the job of getting fair treatment and proper enforcement of existing copyrights that much more difficult.”
The 4th sentence there is similar to what I have been saying. A TM barring others from using a public domain character in the title is acting like a perpetual copyright. Also, trademarking a public domain character can be close to stealing from the public domain.
So, instead of “Tarzan Goes to WalMart," make the title "Graystoke of the Jungle Goes to WalMart.”
Problem solved.
Good.
I will point out that, even though I understand that you wish that were the case, it is not how things actually work.
For the record, they do stand to lose their rights if they don’t utilize the Trademark, just as they would if they don’t protect the Trademark.
However, they are using it, so the amount time they’ve had to use it is irrelevant, in terms of how the law actually works.
You’ve also provided no justification for why that should be the case. There’s an argument to be made for the inability to use/build off plot points stifling creativity. The inability to use someone else’s brand, on the other hand, is something that I find far reaching and baseless.
The difference between what you can & can’t do is, to put it in the most oversimplified & generic terms, use the name of the character. You’re free to right about a jungle man who does the stuff Tarzan does in the public domain works and yadda yadda yadda.
The only reason (as I’ve gathered from your posts) that you want to write about Tarzan from the jungle instead of Jimbo from the jungle is that the brand Tarzan means something and will draw people to your product. The only reason that the Tarzan brand draws people in is because the usage is tightly controlled. If everyone and their neighbor had the ability to utilize the character as they see fit, then the brand quality would drop drastically & the general public would no longer have the inherent interest in interacting with your product in the way you would like.
In other words, if you what you wanted to happen did actually happen, there wouldn’t be a difference between Tarzan & Larry-Bob because the audience would no longer draw a distinction regarding the inherent quality.
By not letting people legally use “Tarzan” in the title that another generation could eventually build upon, they are essentially violating the Copyright Clause. That alone should terminate their rights. Claims that TM don’t act like perpetual copyrights may not be a legal thing but I am going by practical/all intents & purposes here (“de facto”, basically). Also, Tarzan did not originate with them but Burroughs. That is quite a difference.
Except it’s not, because your point is about Trademarks. As I said, there’s an interest in releasing Copyrighted works that doesn’t exist for Trademarks.
I feel like, at this point, you don’t even remember why you’re saying that & just repeat it for the sake of repeating it.
One cannot Trademark (or Copyright) a public domain anything–once it’s there, it’s there to stay.
As I’ve explained to you already, there is a difference between “public domain character from a Copyrighted work” and “Trademarked character from a public domain work”. Refer to my post about “Fuzzy Bunny” for more about that distinction.
Listen.
It’s not a thing in any sense or for any purpose.
I get what you’re doing here.
You’re conflating the word “ownership” with the word “Copyright” because you know that unlimited Copyright runs counter to the Constitution while unlimited ownership does not.
But there’s a reason that they’re different words, and there’s a reason that only one of them is unconstitutional.
Comparing them and then saying that you consider both to be unlawful because 1 of them is unlawful and you consider them to be the same thing is a good attempt at an argument. I mean that sincerely.
But it’s only an attempt.
The comparison is arbitrary & based on standards that you assigned, rather than the ones that actually count.
There is a superficial similarity–but a legal argument needs to be based on something that’s by far more substantive.
One can argue practically anything if they make a comparison as weak as that one. You need something more than just “they’re both types of IP ownership” to be able to argue what you’re arguing. And you don’t have that. Unless & until you come up with it, this will be my last post on the “Trademark = perpetual Copyright” topic.
Why might the Doyle Estate make a “Sherlock Holmes” trademark here? They know they have a few years left of the remaining 10 stories copyright in the USA. After it expires,
they have the trademark on the name so essentially only they can use. That sounds like perpetual copyright or something close to it to me.
I’m sure it does. :rolleyes:
The famous Johnny Weissmuller Tarzan sound recording will enter PD here in 2/2067 (over 130 years after it was recorded). Let’s say we are nearly 50 years in the future. Fair game to use it? No, it is trademarked. Therefore it is essentially a perpetual copyright. Explain how that is justified (by then I hope the estate has gone out of business).
Ok. That one’s simple.
The recording isn’t Trademarked.
The sound on the recording is Trademarked, because it’s immediately identifiable as Tarzan, and, thus, any usage would be the equivalent of using Tarzan himself. A character making that noise off screen, for example, would be recognized by the audience to be Tarzan just the same as if someone else pointed off screen and said “Hey, there’s Tarzan”. Whatever that character went on to do would stand to have the same impact with regard to tarnishing the brand whether he’s identified by name or “trademark” (to use the colloquial definition) yell.
For those people that more about this than mean, do you know of any US court case (Dastar Corp) don’t count where it was mentioned that trademarks can act as perpetual copyrights (I doubt that there is)?
I have no idea what this means grammatically.
Do any of you know of any US court case where it was brought about how trademarks can act like infinite copyright?
Why must they?
Why should anyone else be allowed to use the character?
Should Disney give up mickey mouse and let other people create their own mickey mouse?
No, it’s their mouse, let other people create their own.
The books are already openly available for anyone to read free (copyright)
Why should they need to give up their unique Character who is the** Trademark** of the books?
So someone else can freely cash in on the name? Why?
No one else invented the name or the character, no one else wrote the stories.
Perhaps you should just create your own stuff? It worked for Edgar
The entirety of the letter in the OP is jumbled nonsense. Send it if you want, but you won’t get anything that you seem to be expecting from it. I’d guess you won’t get any response at all.