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Buck Rogers and the Copyright Trolls, Redux

18 October 2015

From The Digital Reader:

With older stories and characters like Tarzan, Sherlock Holmes, Barsoom, and Buck Rogers increasingly protected by trademarks and not copyrights, it is becoming more and more important every day that anyone following digital publishing news understand the distinctions between these two parts of IP law, and how trademarks can be used to lock down works that have otherwise fallen into the public domain.

. . . .

Earlier this year a filmmaker by the name of Don Murphy who had been hoping to make a movie based on the 87-year-old public domain story Armageddon 2419 AD filed a lawsuit against the Dille Family Trust, the legal entity that controls the IP of the author, Philip Francis Nowlan.

Murphy asked a judge to declare that the story was in the public domain.

. . . .

As I explained back in August, it is possible to hold a valid trademark on a work whose copyright has expired. For example, this is how the Burroughs estate maintains control over the Barsoom series.

Do you recall the execrable John Carter of Mars movie from 2012? After it bombed at the box office, the rights reverted from Disney to the Burroughs estate (or so the estate claimed; I am unconvinced that the IP claims are valid).

The trademark issue is important to this Buck Rogers lawsuit because while the copyrights may have expired, the trademarks might still be valid. A tv series based on Buck Rogers was produced in the 1970s, which means that there could be trademarks on elements from the stories.

This movie that Murphy wants to make might contain elements that violate the estate’s trademarks. We can’t know that for sure without seeing the movie, but we also can’t summarily discard the possibility.

. . . .

All I can say at this time is that when we hear of an author’s estate acting as a copyright troll, we can’t assume that only copyrights are involved. The trolls are now using trademarks to their advantage.

Link to the rest at The Digital Reader

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Copyright/Intellectual Property, Legal Stuff

45 Comments to “Buck Rogers and the Copyright Trolls, Redux”

  1. It’s a very interesting subject, although it seems like a lot of words expended to say, “Maybe it’s a violation, maybe it isn’t.” But the author almost lost me when he called “John Carter” execrable. Unsuccessful, it was, but execrable, it most certainly was not.

    • I loved the books. It’s not that they aged well so much as they’ve come back into style again.

      But the movie was terrible.

      • I didn’t think it was that bad. It was certainly stupid of Disney not to have “of Mars” in there.

        • I loved it an everybody I know loved it, too.
          So it only was 90% of the original?
          Meh.
          They planned for a true trilogy so they needed to pump up the Tharns as a threat from the beginning, much as Burroughs did much later with Pellucidar and the Mahars.

          The casting of John Carter was a bit off (I would’ve preferred
          McConaughey with a nice southern accent) but they nailed it with Lynn Collins which was a more critical choice.

          Disney just screwed up with the marketing; they needed to highlight the history of the stories, not hide it.

          Execrable is not even close to accurate.
          (That would be a better fit for the un watchable Lorenzo Lamas version.)

          • I agree. I liked John Carter. I found it a good update on ERB’s originals.

            I know what is bad about the movie, and a little editing would fix that. Cut the first 5m14s from the beginning. Start with Ned reading the telegram. Cut the general store scene (it adds nothing) and the jail scenes and go straight to the chase across the desert to confront the Apaches.

            And rename the movie either Barsoom or A Princess of Mars.

            I like Taylor Kitsch as John Carter, but, yeah, Lynn Collins as Dejah Thoris was inspired.

          • I agree. I liked John Carter. I found it a good update on ERB’s originals.

            I know what is bad about the movie, and a little editing would fix that. Cut the first 5m14s from the beginning. Start with Ned reading the telegram. Cut the general store scene (it adds nothing) and the jail scenes and go straight to the chase across the desert to confront the Apaches.

            And rename the movie either Barsoom or A Princess of Mars.

            I like Taylor Kitsch as John Carter, but, yeah, Lynn Collins as Dejah Thoris was inspired.

            • I don’t think I watched the movie past those five minutes. This might explain why i didn’t like it.

              • Kind of hard calling something “excrement” after only seeing 5% of it, don’t you think?

                I thought it was fun. Nothing supremely noteworthy, but I’ve certainly seen far worse before and since.

                • Nope.

                  I knew the Clooney Batman movie was bad in the first ten minutes, and I walked out in disgust about a third of the way through.

                  These days, my tolerance for crap is a lot lower because we’re awash in great content.

        • It was miles better than Avatar, if less pretty.

      • I like the movie.

      • The badness of that movie was overhyped. When I finally saw it I figured the reviewers were just so jaded they didn’t recognize fun anymore.

    • Agree! The promotion was execrable, but certainly not the movie.

    • I only saw it recently. I was one of those people put off by the bad press it received, but when I did finally see it, I liked it a lot.

    • I only saw it recently — I was one of those people put off by the bad press it received. I liked it a lot when I finally saw it.

    • I enjoyed it quite a bit. It was fun.

  2. I wonder if this “trademark v. copyright” thing might engender a bunch of “trademark squatters” like URL cybersquatters did.

    Lessee here — maybe I can trademark:

    The King James Bible
    Beowulf
    The Thousand and One Nights
    The Canterbury Tales
    Aesops Fables
    The Tale of Genji
    The Epic of Gilgamesh

    and lots, lots more. Pay me or I’ll sue you! 🙂

    • Trademarks are only valid while being commercialized exploited, among other restrictions.

      • @ Felix

        Well, hey, I’m into commercializing and exploiting public domain writing. Show me the money! 🙂

        (FWIW, I snicker often when seeing PD stuff being offered as ebooks for a price on Amazon. PT Barnum was right.)

        • Well, I’ve bought some of those.
          Some folks actually add $0.99 or more worth of value.

        • I’ve paid $2.99 for public domain books on Amazon, not because I’m a sucker, but because the small price is worth it for a book that’s been properly formatted. Most of the free public domain stuff is rife with formatting problems, or words that didn’t scan properly from the print version, or other stuff that frankly makes them unreadable. Even if there are readable versions out there, I don’t have time to sift through the morass to find them.

          • Then there are cases where someone has put up an author’s complete public-domain works for 99 cents. It’s worth paying the money just to get the whole catalogue in one download, instead of getting it off Gutenberg book by book.

          • Same here. The poor formatting is irritating enough that I’ve been trying to figure out how feasible it would be to fix them myself and put them out there. I might grit my teeth at the formatting, but I want the whole text, not missing paragraphs and whatnot.

    • Sorry, but you can’t do that first one. The King James Bible is still under copyright, at least in the UK, even after so many hundreds of years. That is the privilege of being royalty. If you quote any of it and your book is published in the UK, you still need a note like this:

      “Unless otherwise noted, all Scriptures are taken from The Authorized (King James) Version of the Bible. Rights in the Authorized Version in the United Kingdom are vested in the Crown. Reproduced by permission of the Crown’s patentee, Cambridge University Press.”

      There are trolls and then there are royals who have their own set of rules.

      • Are you serious?

      • Yup. I keep telling people that, and they don’t believe me: the crown controls the KJV. Through Cambridge University.

        They can reach into the States, via reciprocal copyright agreements, and sue writers who use the KJV without permission, though I don’t think they do it often, if at all. Most of the people who violate that copyright on a regular basis are publishing religious material for worship – and they don’t have enough money to be worth suing if they’re small. And many groups have their own ‘versions,’ anyway.

        I got permission! I asked for it because I use a number of sonorous phrases from the KJV for things like chapter titles and some verses for epigraphs, and I happen to like the way the language of the KJV rolls off the tongue. Modern translations, including especially the Catholic ones I’m familiar with, have gone more toward accuracy than poetry, and are often deliberately pedestrian.

      • In the US, the KJV is not under copyright. Its why the Gideons distribute that particular version.

    • @James F Brown

      To keep your trademark, you must be diligent in protecting it.

      • Worth noting (without disagreeing with you) that you can protect a trademark by offering licenses, with or without monetary exchange. Suing to stop people from using the trademark if they’re not actually competing with you is just the nasty way to go about things.

        • mrtroy, correct; they’d have to compete in the category you chose. There are often several and sometimes myriad cats under a trademarked name: food, clothing, education, music and on and on

  3. So does trademark have the same term (US) as copyright? If something was trademarked over 70 years ago, can one consider the trademark to have expired?

    • A trademark is valid so long as it is defended and so long as it does not become generic.

      A trademark is effectively eternal.

      • The big limit on trademarks is context. For instance, I might be able to get away with writing a story about a girl who travels to another dimension and defeats an evil sorceress with a pair of ruby slippers, as long as enough of the details were changed. But if the girl’s name was Dorothy, or the dimension’s name was Oz, or the sorceress was called the Wicked Witch, or the Witch of the West, or was green, MGM would sue me in a hot minute. And win.

        Because even though The Wizard of Oz is in the public domain, the ruby slippers are trademarked.

        • Right the ruby slippers were created for the movie. IIRC the book’s slippers were silver, so you’d be in the clear there.

          Came up with a lawsuit over xmas ornaments (?) a few years back.

          • In the book they were called the Silver Shoes.

            Disney did the same thing with Cinderella, making them Glass slippers instead of Golden slippers, because it fit with the esthetic of their visuals better. The glass slipper is a disney trademark. No one can use it while telling a Cinderella story.

            • My understanding is that in the original french version collected by the Grimms they were fur shoes. (Of course, in that version toes were chopped off in trying to fit the shoe.)
              🙂

            • I didn’t have time to check the USPTO but I do know that the glass slipper appeared in Charles Perrault’s 17th century version of Cinderella. Of course a 17th century slipper wouldn’t have looked like the high heel shoe that Disney came up with in 1950 so maybe Disney patented their version of the shoes.

              I was traumatized as a child by being read the Grimm version that involved the ugly stepsisters cutting off either toes or heels to fit in the golden slipper. I couldn’t imagine how Disney could leave that bit out.

              • Actually, a lot of fairy tale things are glass, like The Glass Mountain. But it’s a common yet probably untrue factoid to claim that the glass slippers (verre) were originally fur slippers (vair).

  4. I thought I read that a judge, perhaps the one overseeing the Klinger vs Doyle Estate, was questioning whether Trademark trumps Public Domain.

  5. It seems a writer should be able to create new works with public domain characters even if someone else has a trademark registration. The key thing for a trademark is that it serves as a source identifier. Most of these trademarks do not do that–a title doesn’t serve as a source identifier. The character isn’t a source identifier.

    On a side note, the Dille Family Trust let all the registrations lapse. They filed new registration application for Buck Rogers back in 2009, but none have issued to date. They also filed applications for Wilma Deering, Black Barney, Dr. Huer, and Killer Kane this past August.

    The pending registration application for Buck Rogers was suspended because of another application for Buck Rogers filed by the Nowlan Family Trust. In fact, an opposition proceeding was recently decided in September 25, 2015, dismissing the Dille Family Trust’s opposition against the Nowlan Family Trust use of Buck Rogers.

    http://ttabvue.uspto.gov/ttabvue/v?qs=77650082

    The decisions document (61) includes a rundown of the ongoing battle over Buck Rogers between the Dille and Nowlan families.

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