Is Edgar Rice Burroughs, Inc. Clutching at Straws?

Guest post from The Desk of Atty. Monica Risam Nicklin

Edgar Rice Burroughs is best known for creating Tarzan, the tree-swinging jungle hero, and the Mars-visiting John Carter, in 1912. In 1923, Burroughs started his own publishing company, Edgar Rice Burroughs, Inc. (ERB), and began handling his own works through the 1930s. The author’s grandchildren and great-grandchildren currently run the company.

Since the patents of many of his early works have long expired, having been created n the early 1900s, these works have been in the public domain for many years, which means that they are available for adaptation to current works. This is exactly what Dynamite Entertainment had in mind when they based a series of comic books, Warlord of Mars and Lord of the Jungle, on some of the first Tarzan and John Carter works. But ERB objected, and took the entertainment company, along with its distributor, Dynamite Forces, to court. It would appear that ERB may not have much of a legal basis for suing, but ERB’s accusations are of trademark infringement and unfair competition, not patent infringement. The lawsuit alleges that the Dynamite companies had pressed ERB for permission to run the series, but that ERB had never granted it.

Dynamite publishes several classic-character-based comic book series, featuring the Green Hornet, Zorro, the Lone Ranger and Flash Gordon, for example, and has their own series called The Boys, about a special team that polices superheroes who, due to their popularity having gotten to their heads, forget their image as role models.

Some wonder whether the lawsuit is an attempt by ERB to hold on to its status as sole owner of the rights to Burrough’s works, given the considerable financial benefits the company enjoys from licensing deals with companies such as Walt Disney. If these companies can now use these works legally without any licensing agreements, ERB could effectively be out of business. Thus, the only way for ERB to maintain their hold on these original works would be through trademark rights. The court may hold the future of ERB in its hands, and it should be interesting to see how it rules in this case.