Edgar Rice Burroughs Inc. is suing Dynamite Entertainment over John Carter and Tarzan.
According to an article via the Wall Street Journal, ERB Inc. claims Dynamite Entertainment’s Warlord of Mars and Lord of the Jungle “constitute trademark infringement and unfair competition.”
“Plaintiff is the owner of all existing copyright and trademark rights in and relating to the literary works of the famous author Edgar Rice Burroughs, including the celebrated TARZAN stories and TARZAN character, and the classic science-fiction story and characters of JOHN CARTER OF MARS. For decades, Plaintiff has used or licensed use as trademarks, inter alia, the character names from Mr. Burrough’s stories, including without limitation, the marks TARZAN, TARZAN LORD OF THE JUNGLE, JOHN CARTER, JOHN CARTER OF MARS, and JOHN CATER WARLORD OF MARS on and in connection with a wide variety of goods, including comic books. Decades after Plaintiff began using and licensing the use of these marks, and decades after Plaintiff built up and obtained an enormous reputation and goodwill in these marks, Defendants without Plaintiff’s authorization have released a series of comic books bearing identical or confusingly similar marks – namely, LORD OF THE JUNGLE, WARLORD OF MARS< WARLORD OF MARS: DEJAH THORIS, and WARLORD OF MARS: FALL OF BARSOOM. Such actions by Defendants constitute trademark infringement and unfair competition under the U.S. Trademark Act, also known as the Lanham Act, 15, USC. 1051 et seq., and related New York Law. “
ERB Inc. was set up in 1923, and is currently owned by family members of Mr. Burroughs. What amazes me the most about the lawsuit is ERB Inc. waiting until now, just weeks before the John Carter movie opens nationwide, even though Dynamite has been publishing the Warlord of Mars series since December 2010. Why is the company waiting this long to file the suit? Were they waiting to see if the property would be successful in order to sue for more money? Are there other deals ERB Inc. has that have not been made public that could be hurt by the Dynamite books? And yes, Disney is mentioned many times in the document by pointing out the relationship Disney and ERB Inc. have had in the success of those properties.
It is also interesting to read that ERB Inc. is concerned over the risque and nude variant covers featuring Dejah Thoris as injuring the reputation and value of the characters and property, even though there are many passages remarking on characters being nude or nearly so in the original source text. Again – John Carter opens nationwide March 09, 2012.
Dynamite Entertainment has been under fire over the last couple of years whenever classic characters and ownership have popped up. A few years ago, the Intardwebz allowed to play out the squabbling between Dynamite and Moonstone Books over the acquisition of The Phantom, as Moonstone was also releasing Phantom books at the same time. Interestingly, Dynamite has recently announced The Spider, another property Moonstone has worked with on a regular basis over the years.
ERB Inc. is demanding the immediate recall of all Warlord of Mars and Lord of the Jungle titles, asking for damages sustained by the trademark infringement, and pay ERB all profits, gains, and savings. If ERB Inc. does win the suit, the most difficult part of the judgement will be in the amount awarded, as “damages” are very difficult to prove and justify. For example, IF John Carter tanks at the box office, can ERB Inc. point to the Dynamite books as a reason for this? It is interesting to note that the suit was filed on the same day that reports that Disney is ready to write off John Carter as a loss.
Lawsuits are never fun, but when money is involved, it seems the lawyers are more than ready to jump out of the woodwork to represent companies that feel they have been wronged.  I’m not a lawyer, and certainly don’t pretend to know all the ins and outs of the law, but there is something odd in this lawsuit only coming to the surface now (MARCH 09, 2012 – JOHN CARTER!). If ERB was really concerned about this, why didn’t they try to stop publication over a year ago?
As of now, Dynamite Entertainment and Dynamic Forces have not made a public statement on this lawsuit.
14 Comments
It’s money. Plain and simple. ERB waited until the film was coming out because they want more money.
I was going to see John Carter because I got interested in the series from reading the Dynamite comics, but if ERB, inc. is going to be such jerks about it, hell with it.
Actually, it occurs to me, having seen the trailer, that maybe they’re afraid that John Carter will look bad in comparison to the Dynamite comics and that’s why they’re going after them.
It’s good publicity, until its competition.
Actually, if ERB holds the copyright to Burrough’s work, they have a perfect legal right to go after dynamite ent., if DE didn’t purchase the rights to the work. If they don’t have a copyright, then they won’t have a leg to stand on. You can’t trademark real words. That’s why Kleenex, Electrolux, Frigidaire, etc. made up a name. So you can use the words Warlord, Mars, Carter, etc. as much as you want without having to pay royalties every time you utter any of those words. But if DE did not buy rights to the use the characters, and the characters are still protected by copyright, they are in a bad place. I am pretty sure that if I created a cartoon about two fat guys and a mexican who talk about popular culture and called it Spoiled Majorly, you’d have a perfect right to slap a cease and desist order on my, even if I made up their adventures and claimed they were my own idea. It’s interesting to note that, just as the copyright was about to expire on Mickey Mouse, Disney managed to get the copyright laws changed so they didn’t lose their rights to the character, yet, if you think back on it, WED is the worst offender when it comes to stealing material. I don’t recall the opening title saying “Hans Christian Anderson’s Little Mermaid” or “Carlo Collodi’s Pinocchio” or “Felix Salton’s Bambi”. I could go on and on. “The Lion King” is a mash-up Macbeth and Otomo’s “Simba the White Lion”. So before everybody jumps on ERB Inc. for protecting their rights, you might want to find out the facts of the matter.
I don’t think anyone is saying ERB is doing anything wrong by protecting their copyright, if indeed Dynamite didn’t use the property without permission. However, it is rather odd that the company is going after Dynamite over a year later, and right at the same time a major motion picture is about to be released…
However, it is rather odd that the company is going after Dynamite over a year later, and right at the same time a major motion picture is about to be released…
How long does it take to file and recieve a court date for a copyright claim? Are we in any way certain that this HASN’T been in the works since Dynamite’s first issue, and that it’s only coming to light now? There are a lot of assumptions in play that we simply have no way to validate or dismiss based on the evidence presented to the public.
It doesn’t take that long to file a claim (a few weeks at most) – the date on the court document is February 16, 2012. And considering the suit also includes Lord of the Jungle, which only just came out, it’s more clear that someone was holding off until just the right time.
And considering the suit also includes Lord of the Jungle, which only just came out, it’s more clear that someone was holding off until just the right time.
Mmm… If my corporate synergy is any indicator it was perhaps less “holding off” and more “wait and see.” :D
For some reason I thought I read that Edgar Rice Burrough’s work was all in the public domain at this point– which is why we’ve had so many versions of Tarzan to begin with.
I read somewhere that this is about trademark infringement, not copyright infringement.
And it’s extra confusing because, apparently only some of Burroughs’ John Carter material is still under copyright.
Well whatever the case I think it’s a bad bad move on Disney and ERB’s part because I never had any interest in JCoM until I saw the cover art Ale Garza and others put out so I picked up the first couple issues and I’m hooked. Fantastically written, fantastic art, and not gonna lie the cheesecake is still easy on the eyes. If it weren’t for Dynamite I would have zero interest in seeing the Disney movie. Just compare what Dynamite is putting out compared to the watered down terribly drawn Marvel comic and it’s no contest. All Dynamite has done is free advertising for ERB and they should look a gift horse in the mouth and settle down.
I agree on the “unfair competition” Dynamite’s comic books are leaps and abound above the crap they’re releasing in art alone, including the movie which there is no way I’m going to see now…
Burroughs’ first 5 John Carter and first 8 Tarzan books are public domain in the US. In the US they are claiming trademark infringement and market confusion. They have a legitimate copyright case over books distributed in the UK, however, since Burroughs work is still under copyright protection there. That case needs to be filed in the UK, however, because US courts cannot rule regarding UK laws.