Can you trademark a character from a public domain story?

Hold on to your loincloths ! Last calendar week , it wasannouncedthat Edgar Rice Burroughs , Inc. is sue Dynamite Entertainment over its Lord of the Jungle and Warlord of Mars comics . ERB Inc. , which represents the Burroughs family , accusesDynamite of violating the trademark for characters like Tarzan and John Carter . And they say that Dynamite ’s cover art is too sexy and lowers the moral tone of these characters , because obviously they ’ve never project any other John Carter art .

Burroughs ’ earliest works are in the public knowledge domain , including Tarzan of the Apes , The Return of Tarzan , A Princess of Mars and The Warlord of Mars . That ’s why The Asylum was able to make thatludicrousPrincess of Mars motion-picture show , starring Traci Lords , which air on Syfy last year .

https://gizmodo.com/most-awesome-moments-from-princess-of-mars-with-traci-5557876

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So how can ERB , Inc. peradventure have a ramification to digest on , when the early work sport John Carter , Dejah Thoris and Tarzan are in the public domain in the United States now ? A very helpful ( and sentiment - hassle ) clause over at IP Brief , write by American University law scholarly person Caroline Gousse , explains :

The protection of a grapheme as separate from the security of the surrounding piece of work of fiction could sound surprising at first . If one were to pen a tarradiddle about a teenage thaumaturgist with jet - black tomentum and a lightning - shaped scar on his forehead , one would likely be sue over right of first publication infringement of J.K. Rowling ’s Harry Potter books , more so than over the hallmark misdemeanour of its independent character . However , one could also be sued for trademark infringement of the character of Harry Potter . Both way , intellectual dimension protection of fabricated characters may indeed change by reversal these pieces of imaginativeness into very remunerative creation . Although ERB , Inc. is arguing that the ship’s company still owns copyrights over Tarzan and John Carter of Mars in certain country and that the dispersion of Dynamic mirthful - Holy Writ in those countries would leave in copyright violation under extraneous law of nature , ERB , Inc. chiefly bases its claim of infringement on Tarzan ’s and John Carter of Mars ’ trademarks . The strategy surely has to do with the difficultness of proving copyright infringement of a fancied character . It is by nature so ambiguous to set most characteristic of a fictional fibre , besides physical or general descriptions ( for instance , jet black hair , light green eyes , lightning - shape panic on forehead ) . However , it does not appear that showing stylemark violation would be an easy direction in this typesetter’s case .

The whole piece is worth reading — but in a nutshell , it sound as though it ’s much easier to defend a trademark when you have a special intersection link with that stylemark , which ERB , Inc. does n’t in the case of “ Tarzan ” or “ Warlord of Mars . ” And also , as though it ’s a lot well-off to go after people for copying a news report than for a character in that history — unless the fictional character is the story , as in the case of , say , Batman . [ IP Brief ]

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