Lapse of Copyright and an Ethical Dilemma

An interesting issue arose during today’s visit to my local bookstore.

I have been a fan of Edgar Rice Burroughs since I was a kid. I guess the pending John Carter movie has resulted in quite a few new editions, which was nice to see.

But it has also resulted in something called “Under the Moons of Mars” where various other authors have taken it upon themselves to write stories set on ERB’s Barsoom.

I guess copyright has lapsed since there is a large disclaimer: “NOT authorized by ERB Inc. or the Burroughs Estate”. Which means, of course, they got no say over content or $$.

But apparently neither the publisher nor authors (kind of disappointing, these are pro authors not respecting another’s creation, not FanFic) gives a shit about that when there is money to be made.

I really would like to read some new Barsoom stories, but hate this type of disrespect for an author’s legacies.

Since there a lot of people here who are in the creating business, I was wondering what you all think of this type of thing???

That’s silly. Why would pro authors be writing books set in a world they don’t have a deep affection for or whose creator they don’t respect?

You don’t think such “respect” should involve actually getting the permission of his heirs to do so, even if it is not legally needed? Let alone cutting them in on the profits?


Why? His heirs didn’t write his books, and he’s dead. If the heirs want to write more books about Tarzan or Barsoom, they’re more than welcome to, but I’ve never seen why they should receive an automatic say or preference just because they happened to receive some of his DNA.

Now, personally I’d prefer other authors not even attempt to ape the style, setting or characters of a deceased author, authorized or not. If they have something genuinely new and novel to say with them, fair enough (I found the Sherlock Holmes/Lovecraft pastiche “A Study in Emerald” by Neil Gaiman quite entertaining), but in general, let it lie.

I’m no expert, but isn’t the burden on the estate to keep up the copyright? If they let it lapse while people are still interested in the material, perhaps others should take up the reins? Isn’t that’s just how public domain works?

If it were a series I loved, I’d want to read the books. Find out if how they stack up against the originals. Whatever happens, no one can deny the author the success he won with the originals. By continuing to keep the world alive, these various authors are also promoting the originals to new readers, keeping the (original) books in the public eye, even if they are making a profit off the new works.

FYI, I’m just guessing there was some type of lapse that the Estate could not prevent. ERB Inc used to be pretty infamous for aggressively protecting their rights…

So when does it become okay? Should we be tracking down some Greek decendent of Homer before writing about the Trojan War?

While I agree that the legal term and the “fair” term don’t need to necessarily align, conceptually, I think the legal term that we grant is pretty damn good (I’m looking at you, Disney).

Copyright term can vary by country and even by publication date, but in the USA at least everything that was published by Burroughs before 1923, which includes at least the first five Barsoom novels is by now out of copyright and in the public domain, which BTW is probably also part of the reason why you’re seeing all those reprints. And that’s a good thing.

After all, the purpose of copyright is to promote the creation of new works by giving the creator the means to make money of them. However, again in order to promote the creation of further new works, at some point it becomes beneficial to let other people make derivative works of originally copyrighted material without prior consent as that’s something authors have done throughout history and to great effect. Many works might never have been made if not for that, from crossovers like The League of Extraordinary Gentlemen (Volume 2 of which happens to contain John Carter) to alternate character interpretations like Wicked to animated adaptations like The Jungle Book.

Disclaimer: IANAL nor am I in the creative business.

Yeah, anything before 1923 is in the public domain. I believe there can be a gray area when a writer has works published both before and after 1923 set in the same fictional world. That world may be considered IP owned and under copyright by the heirs since there is work published after 1923.

I think this is the stance that the estate of Arthur Conan Doyle has taken when someone wants to use Sherlock Holmes in a derivative work, even though the books were published before 1923 and in the public domain. Apparently there is something Holmesian copyrighted by Doyle after 1923 – probably radio plays or movies or something.

This. The author died more than 60 years ago. It is completely implausible that enforcing intellectual property rights anywhere near that long has any effect on incentives to produce intellectual property.

There is nothing unethical about using the intellectual property of someone who’s been dead that long, nor is there is any reason whatsoever to cut the heirs in on the profits. Nor is there is any reason to ask the heirs for their blessing in any sense when using the intellectual property.

Disrespect? If you created something that people love, would you want your great great grandchildren suppressing its distribution so they can earn money off your creation? That seems disrespectful, not the other way around. Even if you would want your heirs to keep exploiting your monopoly, wouldn’t you want your great great grandchildren to live in a world where they can enjoy thousands of other long-dead people’s creations without paying their respective heirs monopoly rents?

For that matter, I’d cheerfully argue current (US) copyright persists far too long. Life of the artist (assuming the rights still belong to the artist)? Sure. Life of the artist plus maybe 10 or 20 years for respect and to give their dependents some time to find their own way in the world? Arguably sure. Past that? No. Why would that benefit anyone other than the artist’s heirs, whose personal interests are not the business of the state or the consumer?

All of this of course assumes a single creator rather than a team or corporation. Things get muddier there. I see no particular reason to extend corporations the same niceties as an individual, especially not eternal rights while still “alive”, a state which may never actually cease to be. Obviously they do need some protection to make it worthwhile to pursue creative endeavours at all, though. Where the proper balance lies, I couldn’t say for sure.

And even for single creators, I’d personally be inclined to revoke their rights if they just sit on 'em. If you’re actively producing works based on your rights and offering them for sale or free, fine. If you are at least making your prior works available for public consumption in some format, probably fine. If you have (as some videogame companies have) a set of IPs where the only contact you’ve made with them in years is preventing other people from making them available, then that serves no one’s interests.

Wheeee. A tad bit more professional fan fiction. I’ll pass every time.

I’ve enjoyed a few Sherlock Holmes pastiches in my day. I wouldn’t rule it entirely if you like that fictional setting.

Guess, I’m in the minority here then. Kinda surprised with the anti piracy vehemence. So if I overlook the guilt and buy the book, I won’t feel so bad…:)

BTW, is the movie authorized? Never even wondered until now…


Probably. The official site states: “Trademarks ‘John Carter’, JCM Design, ‘BARSOOM’ and ‘A PRINCESS OF MARS’ owned by Edgar Rice Burroughs, Inc. and used by permission.”

Which made me wonder if trademarks can be (ab)used to continue exerting influence over characters and settings that have entered the public domain?

I’m no lawyer, but my understanding is that the trademark is what would prevent you from making new Mickey Mouse stories, but it can’t stop you from distributing works like Steamboat Willie after its copyright expires. You could slap it on a DVD and sell it, but you’d have to be careful about how you market it to avoid trademark trouble.