Dynamite’s Warlord of Mars too naked for Burroughs

Edgar Rice Burroughs Inc. (ERB), the corporation which holds and represents the estate and intellectual properties of the late author, has filed a lawsuite against Dynamite comics.

Yes, ERB 

claims the publisher has violated copyright on the John Carter series with their Warlord of Mars comics line.

Dynamite approached the corporations several years ago to negotiate the rights to create a comic book line which featured John Carter and the characters in the John Carter of Mars franchise.

ERB turned them down and subsequently signed a deal with Disney for the film, comic book, and toy rights to the franchise.

Dynamite, meanwhile, saw their request to ERB as a mere courtesy, and went ahead with their plans to create a John Carter comic book line called Warlord of Mars, on the assumption that they were working under the protection of free use because A Princess of Mars is beyond copyright protection, and is therefore in the public domain. 

The way American copyright law reads for novels, a book gets protected for 70 years after the death of the author. There are other factors involved, and it fluctuates through history, but the long and short of it is that the beginning of the John Carter of Mars franchise has entered the public domain, which means that all characters, settings, and situations in those first stories are now in the public domain, free for anyone to use creatively in any work without paying for the rights. (Incidentally, that’s why Disney keeps pushing to extend the time limit on copyright protection for films: as soon as Steam Boat Willy enters the public domain, anyone will be allowed to use that itteration of Mickey Mouse for anything they want).

Interestingly enough, neither side disputes the fact that the early Carter stories are in the public domain.

However, here’s where it gets murky. Firstly, ERB holds a trademark on the name John Carter as a brand. Dynamite respected that by not printing the name John Carter on the outside of their books or in their promotional material – and they didn’t even have to do that – but ERB is claiming that the use of the character in the Warlord of Mars books constitutes a violation of that Trademark.

This is dubious, and likely won’t hold up in court, as it would establish a terrible precedent. Trademarks never run out. As long as a company continues to use and renew a Trademark, they can keep it forever. If all an intellectual property holder had to do was take out a Trademark on each of their characters and settings, and then they could keep them forever, what would be the point of copyright limits?

Second, ERB claims that the works are still under copyright in the UK, which retains longer limits on novels and other printed works. While this is true, it seems unlikely that a New York judge will uphold the UK copyright here. Dynamite does not currently publish in the UK, so that’s not likely to be an issue.

Finally, ERB claims Dynamite’s infringement is particularly egregious due to the “pornographic” nature of their comic book art, claiming that the mostly naked, and particularly well-endowed characters are permanently damaging its “extremely valuable reputation.” They might have some leg to stand on here if John Carter was still a protected character, or if the trademark was famous enough to fall under “famous trademark” clauses, but I don’t think it does. Clearly, ERB hopes that the judge sees it differently.

As an author, I understand the desire to protect one’s intellectual property, but John Carter, as a franchise, is nearly a hundred years old, and there must be limits on how long a copyright can be protected – personally, I think even 70 years is far too long. If ERB wins this case, it could set a stifling precedent, and a severe blow to our current understanding of free use. Of course, if (when) they lose, I’m sure Disney will start wondering what, exactly, they paid for when they bought the right to use John Carter in its upcoming film.