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22
2 YEARS

'John Carter' Author's Estate Sues Over 'Pornographic' Comic Book Knockoffs

Two weeks weeks before Disney's 'John Carter' hits theaters, the estate of the original author looks to protect his work. But the case opens up questions about the public domain and the boundaries between copyright and trademark law.

Warlords of Mars Comic Book Cover - P 2012
"Warlord of Mars"

Next month, Disney will release the big-budget sci-fi epic John Carter, based on the early 20th century action adventure stories of Edgar Rice Burroughs. The film tells the story of a former Confederate captain who is transported to Mars and captured by 12-foot tall barbarians before escaping to find a princess in need of a savior. If this sounds like the start of a good plotline for un-Disneyish adult entertainment, well, sure.

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The Burroughs estate has just filed a lawsuit against publishers of comic books that allegedly violate the copyright and trademark of Burroughs' work, including his John Carter of Mars series of books and his celebrated Tarzan stories. The new comics in question are purportedly "based on" the old stories, but amp up the sexuality involved. The covers show the princess nude and the comic panels are claimed to "border on (and in some cases are) pornographic."

But the lawsuit is far from a simple case of intellectual property stripping.

Burroughs wrote his first serialized John Carter story in 1912. The copyright on much of his work expired and is now subject to the public domain.

Nevertheless, in the new lawsuit filed in New York federal court, Edgar Rice Burroughs Inc. says that works in both the John Carter and Tarzan series published after January 1, 1924 are still eligible for copyright protection in the U.S., and that all of his works are still under copyright protection in the U.K.,  thanks to the Berne Convention for the Protection of Literary and Artistic Works that  extended protection to the life of the author plus seventy years. In addition, the estate claims trademarks over John Carter and Tarzan marks.

According to the complaint, defendants Dynamite Entertainment and Savage Tales Entertainment approached ERB in 2007 about the possibility of publishing comic books based on John Carter and Tarzan. ERB informed them that it had already licensed comic books to another publisher. Also that same year, ERB licensed Disney to make a film, and in anticipation of the forthcoming release, also licensed a toy company to come out with 12-inch John Carter collectible action figures.

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Dynamite and Savage, both owned by Nick Barrucci, were undeterred.

In July 2010, says the lawsuit, the defendants introduced new comic books, including the "Warlord of Mars" series, which the plaintiffs believe to be an infringement of the John Carter series.

The covers were risqué. Here's one example of "pornographic" work that ERB is now complaining about, saying its "extremely valuable reputation may be permanently damaged."

Warlord of Mars: Dejah Thoris #3 (May 2011)

ERB asserts that "Warlord of Mars" is "confusingly similar" to its John Carter marks, and that consumers are "likely to believe erroneously" of its sponsorship and endorsement.

Unfortunately, the copyright term has run its course, and making porn comic book derivatives, however untasteful to the estate, could be deemed lawful. ERB is pressing forward anyway, attempting to get a New York federal judge to enforce UK copyright law.

ERB is also aiming to use its trademarks as a legal sword to protect characters and stories under the public domain, something we recently discussed in disputes over The Wizard of Oz.

Some IP experts question the validity of the plaintiff's claims. Christopher Sprigman, an IP professor at University of Virginia School of Law, told one legal news site that ERB was subverting the constitutional foundation of copyright. "What they're trying to do is bootstrap their way into perpetual copyright by using trademark law," he said.

The forthcoming case could provide some more clues on the suddenly hot issue of how works that border on the public domain get treated and possibly protected. ERB demands that the defendants be permanently enjoined from using its intellectual property.

As for Disney, there doesn't seem to any film adaptations of "Warlord of Mars" coming out soon. Now, that would be a mess.

E-mail: eriqgardner@yahoo.com

Twitter: @eriqgardner