Just make your story about another Ape-Man, 'mkay?:rolleyes:
Can you please critique this letter to the estate of Tarzan's creator? Long posts before the letter.
I would make one about Tarzan and a Tarzan knock-off. Sheesh, copyright minimalists like me have a hard time convincing people that ERB is doing is clearly on a copyright maximalist mentality.
That’s the irony of the situation.
The thing he’s complaining about is the only reason that writing about Tarzan is a more attractive option–brand purity.
They stop protecting the brand, people stop caring about Tarzan more than Other Random Jungle Guy.
Brand purity is the only difference between the options.
How would you know people would stop caring about Tarzan? “Brand purity”? Oh please. If they were more concerned about brand purity and staying true to the material, then they would have more objections to how movies do remakes of Tarzan that are likely incredibly unfaithful to the source.
I would think a good way to “fine tune your writing skills” would be to write, rather than spend all your time complaining about intellectual property rights.
This is simply not true. You have no idea what you’re talking about. A trademark covering a name of a character does not extend the copyright protection on that character.
A character itself can become a work of expression protected by copyright law and the copyright protection on that character can expire the same way that a book about that character. People can now write new books featuring the Sherlock Holmes character that include all the traits of that character that have fallen into the public domain.
You’re right, as I’ve been saying, but Trademarks generally cover the identity, rather than the name.
If you write a book but strongly imply that the character is Holmes without using his name, you can find yourself in the same position as if you did come right out and say it.
If the average member of the audience comes away thinking that they just read a Holmes story, then you’re in the same amount of trouble whether you explicitly say it’s a Holmes story or if they reach the conclusion on their own.
As I said in a greatly simplified earlier post:
(All this assuming that Holmes is actually a Trademarked character, of course.)
You’re mixing up copyrights and trademarks here.
No, I’m not & I’ve been very clear about the distinction. I would highly suggest reading the points I made earlier in the thread.
There’s a difference between plagiarizing the identity of the character by copying their mannerisms, traits, and actions (which is a Copyright issue) and using a character without positively identifying them as a Trademarked character (which is still a Trademark issue).
The difference, as I said in an earlier post where I clarified this, is in how the character is presented, rather than how they’re described. Here’s a link, since you apparently missed it somehow.
People think that they can do whatever they want with Trademarks, as long as they don’t use the name–that’s not true.
Trademarks exist for purposes of brand purity and preventing brand confusion. Strongly implying (without outright saying) that your character is a Trademarked property is no different than outright saying it, because the audience comes away with the same thought either way (refer to my oversimplification that I quoted in the last example).
You’re conflating the things that people think about when they think about the identity of a character (their traits, mannerisms, and thoughts), which can’t be Trademarked, with the actual identifying characteristics of the character, which can’t be Copyrighted.
I missed the edit window but I want to add:
I’m sure you can see why Trademarks prevent insinuation as well as explicit naming, as the Trademark would be meaningless if it said “you can’t write ‘Sherlock Holmes’ but you can write ‘The detective…with the initials SH…with the address of 221B Baker Street… I can’t say his name, but you know who I’m talking about… Anyway, he…’”
If the audience thinks that it’s derivative of a Holmes story, you have no Trademark issues, but might have a Copyright problem.
If they think it is a Holmes story, you have a Trademark problem, whether you explicitly called it a Holmes story or not, because that’s what Trademarks exist to prevent.
The difference is primarily superficial but it does exist.
It is part of the assets of the company’s intellectual property and their publishing catalog. This is like asking them to give up land simply because they’ve owned it for 90 years. How long have you lived in your house? It has appreciated over the years, it is time for you to donate it to a non-profit and learn to let go, and move on. Does that sound logical to you? Of course, not.
If you’ve actually created an original work, had it copyrighted and published it, you’d have a different understanding of it. Creators and companies can’t exist to do other works and publish other things without a stream of income from the company’s intellectual property. Asking them to give them up because you think it has been long enough is like someone taking your car because you’ve finished making all the payments on it and it should be given to someone else so they can drive it too.
Going over your letter, you have some real problems in there because you are overlooking the logistics of a business:
Creators of copyrighted works, patents, recorded music, works of visual arts, movies, comic books, etc., are not given anything. All of their time and money invested is 100% at risk. They are not in any way, shape or form given an adequate financial incentive. There is absolutely no guarantee that there will be one gross cent of revenue by creating these works. In fact, many create numerous copyrighted works and patents that never get exploited. Think of all the independent filmmakers who self-fund and their movie looses money. Think of the musicians who compose music for an entire album that doesn’t sell. So business doesn’t work the way you are describing it. You make it sound like the creator is given a guaranteed stipend from the start, and then makes tons of money on it. That is just flawed, because it doesn’t work that way. As I mentioned, this is why companies need to hold on to copyrighted works because they survive on the royalties, sales and licensing.
This to is flawed. The copyright law encourages people to create new original works. There is Superman. If there were no protection for those works of Superman, then people would continue to write stories for Superman instead of creating new works such as Spiderman, Batman, etc., the point being each of those are completely different characters. Stan Lee the creator of Spiderman was interviewed and talked about how he created the character. He was looking for something new. This is a good thing, everyone benefits from it.
Says who? How are they to take chances with new original works if they have no money to fund this? It is fine to say you are making money for years, and then get upset nothing new is created or they simply go out of business because of one bad comic, movie, book, record, etc.
What is your real issue? You want to use something, then seek permission and find out what is really involved. If you can’t afford it and/or they won’t grant it, then you should create your own new original work instead of churning and re-publishing someone else’s work.
edwardcoast, that part of my letter was paraphrased from copyright.nova.edu/copying-is-not-creativity (par. 17). Also, look at the Copyright Clause’s mandate at copyright is to be used for. Having a TM last for so long functions like a permanent permanent and the Clause specifies it for the artist or writer to make creative works not their estates. However, the previous 56-year cap on copyright here for a work was more than long enough to provide for your family and get TM royalties.
To infringe a trademark you must use a confusingly similar trademark in commerce. I have never seen a case in which infringement occurred by insinuation.
Kadmos1, you should stick with your gut instincts in this case, and follow the advice I gave you in post #122. I predict that what you will accomplish will not be measurable.
TM is a brand. Think McDonald’s .
Imagine the McD corporation decides to shut every restaurant - but they keep their trademark, by selling McDonald’s glassware and utensils.
As long as they do this you cannot open a McDonald’s restaurant without their permission. Ever. Period.
If they let the trademark lapse, go for it.
So think of Tarzan as a brand, not a character.
Sure you can. Trademarks are limited in scope to the market segment in which the brand exists. Glassware is not restaurants, and a litigant could have a very strong case that McDonald’s is no longer entitled to trademark protection in the restaurant market if they no longer operate any restaurants.
Your argument: I should be able to, after all this time, write and publish Tarzan stories and perhaps make money doing so.
Their argument: We have been for all this time and should be able to continue writing and publishing Tarzan stories and perhaps make money doing so.
Both arguments are completely understandable. The only difference, in fact, is that theirs has the weight of trademark law supporting it and yours does not. Guess who wins…
I’m beginning to think that Debillw3 doesn’t really care about keeping copyright and trademark issues straight. They just want to have the last word.
And that is enabling/provoking Kadmos1, whom I’m beginning to think is practising an art I can’t mention outside of the Pit.
I asked this question this morning: avvo.com/legal-answers/if-one-wanted-to-write-a-tarzan-work--could-they-l-2970071.html. The question was about using the public domain versions. Two attorneys said that could be done but I would have to avoid showing sponsorship from the estate, that the mark owner would have to show a market confusion/unfair competition, and to consult with a layer.
But “filing off the serial numbers” seems to work. Derleth wrote the Solar Pons stories while Holmes was still under copyright. The pastiche is obvious, but there are just enough differences…
(I don’t believe anyone actually tested it in court.)