I looked into the status of 3 similar out-of-copyright but trademarked characters.
Sherlock Holmes. In the US all but some later short stories are out of copyright. You are free to write new Sherlock Holmes books, etc. based on characteristics of the earlier work but not the later. OTOH, the estate holders have trademarked all sorts of Sherlock Holmes stuff and you might end up getting sued. Some have, some haven’t. Movie/TV shows obtain a license just to avoid any problems. (Plus these folks are big on IP protection and don’t want their skirting stuff on Sherlock Holmes to be used against them on some other matter.)
Buck Rogers. There’s an attempt to make a movie based on an early story. From what I’ve read the Judge basically made an incredibly odd decision to punt on it. The movie isn’t going forward until the trademark dispute is settled. The judge says since the movie isn’t going forward there’s nothing to rule on. Weird. Bonus points: there’s a dispute over who actually owns the rights. Double bonus: In the public domain stories, “Buck” Rogers is not used. The nickname comes later.
Zorro. The “main” owners are litigious. If you do a noticeable Zorro thing, you will be sued. You have a chance of winning. Bring legal fees. Bonus points: Another dispute over ownership.
And that’s just in the US. If you want to sell a book internationally, then your problems compound. E.g., there’s been a special creative control extension granted to the hospital that owns the rights to the Peter Pan material in the UK. If you want to publish a new Peter Pan book in the UK you gotta get it cleared. (Shoot, you can’t publish the King James Bible in the UK on your own!) And on and on.
It would be really, really nice if SCotUS made a simple, clear ruling on such trademarks. Until then, you have to worry about legal fees or worse.
I suggest you send the letter just as it is-don’t change or add anything . I can guarantee you that they will give it all the attention and seriousness it deserves, make the right decision as to how to respond to it, and give you exactly what you deserve.
OK, so say that we are 45 years in the future (by then, all the ERB Tarzan finished (by Burroughs himself) books will be out of copyright at the earliest). Does it really make sense to have the TM still around? The estate will have had nearly 140 years of business. I think that is long enough for a literary estate. By then, people should be able to use the names of the Burroughs
characters in the titles.
Why Tarzan, though, a property mired in racism, and blatantly inspired by Kipling’s Mowgli?
I mean, I was miffed to find out DreamWorks, and now Universal, bought up the rights to Felix the Cat (a character not exactly clear of racisms, but not unsalvageably so). None of Otto Messmer’s descendants receive a dime from the property, and Universal had absolutely no hand in creating or funding his creation. But thems the breaks!
You clearly have no idea what a trademark is for or why it exists. So long as the name “Tarzan” (or an image of Mickey Mouse, for example) uniquely identifies the source or origin or sponsorship of goods or services, then a valid trademark exists. So long as people understand that “Tarzan” used as a trademark indicates the approval of the estate of Edgar Rice Burroughs then it makes sense for the trademark to exist, regardless of the copyright status of the original Tarzan stories or the characters.
Already addressed. It’s not as simple as you’re making it out to be. Trademark protects the identity of the character, Copyright protects the words about & from the character.
In the instance of a valid Trademark, stories entering the public domain only free up the latter.
In the instance of a dispute regarding who owns the rights, that takes precedence over anything else.
As explained above, your “Double bonus” means nothing in terms of the ability to write future stories.
Every Trademark owner is (supposed to be) litigious. If they don’t defend or protect their Trademark, they lose their rights.
Also there’s no Trademark where you won’t necessarily win a case–you have a chance with all of them. It just depends on how you use the Trademark and why.
The situation is pretty clear as it is with regard to what the OP wants to do. There’s a definite gray area, but it has nothing to do with Copyright status of the works featuring the characters & isn’t broad enough to include blatantly writing a story about the character.
Also, an appellate court (it doesn’t need to the the Supreme Court) ruling wouldn’t prevent you from needing legal fees. Unless the situation is blatantly obvious as not being infringement, the owners need to take action against you. If you refuse to pay the license fees, that requires taking you to court. There is no “we’ll let that slide” in Trademark law.
CDE trademarked the name of a character that is mostly public domain here. Those TM include books and only licensors can normally use said trademark. As the character name can normally be used just by the estate and licensors, it acts as a perpetual copyright. How hard is that for you to get?
Also, let’s say Doyle himself put in his will he didn’t want any of his characters trademarked. If this was the case, CDE is not honoring the wishes of Doyle (which I thought an estate was supposed to do). Crush my other points but the last 2 sentences of this paragraph would see an interesting rebuttal.
Don’t know if he said that or not. Point is that estates don’t always honor their estates. To me, they often use TM as a perpetual copyright and claim it is in the interest of their namesake when it is really so they can milk the work and not apply for an actual job.
For the record, I am against TM existing as perpetual copyright when it is applied to literary or movie characters. If my wish is granted, Congress will agree that retroactive copyright extensions, copyright restorations, and TM on public domain characters (names, images, sounds) acting as a perpetual copyright are all unconstitutional. SCOTUS would then disagree on this by a majority. Finally, Congress challenges the SCOTUS ruling (2/3 agreement) and impeaches a SCOTUS judge.
It has nothing to do with what you’re talking about.
But since you brought it up, there are situations where estates are free to make their own decisions, even if they run contrary to the will. That’s a mud pit that I’m not getting into though.
I’m not going to play this game with you anymore.
I’ve explained clearly and repeatedly, even giving you examples.
Unless this thread finds its way into the Pit or you drop your “they can’t do this because it’s illegal (even though it’s been explained 6 ways from Sunday that it’s not)” track, I have nothing more to say to you.
