1709 Blog: for all the copyright community

Friday, 22 July 2011

Life after death on Mars: a reader asks ...

One of our readers (let's call him Dave, since that's his name) has just written in with this question:
"I'm interested in writing a book set in the John Carter of Mars universe, created by Edgar Rice Burroughs. The first four books of the Mars series were published in the US prior to 1922, so I believe I'm in the clear from a copyright perspective to put the book up for sale in the U.S. Burroughs died in 1950, so the the remainder of his the books in the series aren't in the public domain globally until 2020 at the earliest.

The sticky wicket is, the Burroughs estate has been rather aggressive in protecting the John Carter 'brand' (as well as Tarzan), by coming at it from a trade mark tack [coincidentally, the Burroughs' Community trade mark application for JOHN CARTER was published only last week].

I'm wondering how likely I would be to get a cease and desist, or worse, if I wrote a book which only referenced the characters and events depicted in the Mars books 1-4. Is there a precedent for this, with estates or companies trade marking the property in such a way that no new works can be created. Or, since the titles I would be referencing are in the public domain here in the states - am I pretty safe if I keep any sales within our borders?"
Readers will instantly spot that this is a trade mark issue, to the extent that the use of characters whose names and possibly likenesses are protected as trade marks may -- or may not -- be a trade mark use if used in the title or narrative of a book. There is also that old favourite question about whether there is such a thing as copyright in a fictional character per se or in the manner in which that character is depicted.  Readers' comments are welcomed, as ever.

There's an entertaining and fairly polemical article which touches on some of these issues by Paul Reeskamp: "Dr No in trade mark country: a Dutch point of view", Journal of Intellectual Property Law & Practice (2010) 5 (1): 29-38 (abstract here). I expect that there's plenty more out there, but Paul's piece sticks in my mind since I had to edit it for publication ...


Anonymous said...

Isn't the copyright term in the US 100 years and not 70? Need to check carefully on this - remember the recent Salinger and Watcher in the Rye case.
Graham, Plymouth

petemaskreplica said...

US copyright law is incredibly complicated! But the three main points are: if it was published before 1924 it's public domain; if it was written after 1978 it's copyright for the life of the creator plus 70 years; and if it was published between 1924 and 1977 it may be copyright for up to 95 years from publication, depending on a whole heap of things ( e.g. whether and when copyright was renewed). Broadly nothing currently protected will become public domain there until 2019.

Caveat: this is a gross over-simplification of things!

Eric H said...

Petemaskreplica: actually, it's anything published prior to Jan. 1 1923 (e.g. anything from 1922 or earlier) that is in the public domain. The Copyright Term Extension Act increase the renewal terms from 47 years to 67 years, but only for existing copyrights. In 1998, when the law went into effect, anything published in 1923 could still have been under copyright, since copyright terms expire on Jan. 1 of the year after their the term ends: anything from 1923 would have been in the last year of its term. The Burroughs books, assuming compliance with formalities, would have their terms expire 95 years after publication.

To the reader's question, the Arthur Conan Doyle estate maybe a good example of the use of trademarks to prevent new works for characters which, from a copyright point of view, are in the public domain. The ACD estate maintains that its trademarks (which are perpetual as long as they're enforced) are sufficient to protect the characters. It seems dicey to me, and I don't know of any cases where they have successfully sued, but I haven't looked either.

Anonymous said...

Looks like this is possible, as long as the author steers clear of the trademarked words of John Carter and Dejah Thoris in the actual title. Here's a collection coming out soon called "Under the Moons of Mars":


AndyJ said...

@Eric H. Interestingly, a quick check of the UKIPO website shows 7 extant (plus 2 withdrawn and 2 refused) entries containing the text 'Sherlock Holmes' and they are registered to a variety of companies, several of which are not based in the UK. Only one (Rollerteam Limited) seems to have registered another Sherlock Holmes related mark, '221b Baker Street'. The span of classes is also wide (only 3 are in class 16 for printed matter, while there are also 3 in class 34 - tobacco and smokers' materials).

David Stewart said...

Jeremy – there is a comic book written by Alan Moore called The League of Extraordinary Gentlemen. This comic, originally published by DC Comics (a subsidiary of Time Warner), was made into a movie. Both the comic and the movie are based on the premise of the interaction between late 19th century and early 20th century fictional characters, such as the Invisible Man, Dr Jekyll and Mr Hyde, Dracula, Sherlock Holmes’ nemesis Professor Moriarty, and others.

The comic draws upon far more fictional references than just those which appear in the movie. One of the scenes in the comic is set on Mars. A Confederate army officer named “John”, leading a band of multi-armed Martians, fights the creatures from HG Wells’ War of the Worlds. At one stage another fictional character shares a moment of poignancy with “John” over the apparent death of “the Princess”. It is clear, to those familiar with Burrough’s books, that “John” is “John Carter of Mars”, “the Princess” is John Carter’s wife, Dejah Thoris, and the Martians are identical in description to those in Burrough’s books.

But at no stage are the character’s names mentioned in full, nor are there any other obvious references to the concepts in Burrough’s novels. It is clear that the publisher’s legal department has had involvement on the use of the characters so as to avoid starkly obvious references which might raise intellectual property issues. The writing is done is an exceedingly clever fashion in being highly suggestive but not – barely - passing off the goodwill in the concepts in the novels.

(The Wikipedia commentary on the comic is here: http://en.wikipedia.org/wiki/The_League_of_Extraordinary_Gentlemen)