A PRINCESS OF MARS Is Public Domain?

July 15th, 2006 | comics talk, researchmaterial

In noting that a proposed comics adaptation of Burrough’s PRINCESS OF MARS appears to have been taken behind the stables and shot, Heidi Mac makes an aside I was unaware of. Apparently, that book is public domain.

However, the other books in the sequence clearly aren’t. And Heidi suggests that trademarks may also apply.

Is this a case where a work being public domain essentially means nothing at all? Does anyone with expertise in the field actually know?

(That’s as opposed to, “I know absolutely nothing about any of this, but my opinion is…”)


13 Responses to “A PRINCESS OF MARS Is Public Domain?”

  1. Without a ton more information, this is the best I can determine.

    The book could be in the public domain, depending on when and where it was published, and whether or not it had the proper filings and markings on it at the time. This varies a great deal from country to country.

    There could be a trademark issue as well. I did a quick search and it doesn’t appear that there is a US registration for “A PRINCESS OF MARS”. However, there could be a trademark registered elsewhere, and there could be common law rights as well.

    What does all this mean? Well, uncertainty is the enemy of business. Many projects are scrapped simply because the legal status is so uncertain. Most publishers aren’t going to jump into a potential lawsuit unless they have a sure fire winner. My guess is that the whomever owns the copyright to the subsequent novels didn’t want to play ball (sign a contract) and the publisher wasn’t willing to fight about it.

    To determine the ‘actual’ legal status of the property would take lots of time, effort, and research – anyone who tells you different is mistaken. And yes, the public domain ain’t worth a whole lot in this legal climate, and that’s a shame.

    Rob (I have two law degrees in the US and am awaiting admission in NY. But, I’m a little fuzzy on British and EU law, so there may be another perspective I’m missing.)

  2. Because _A Princess of Mars_ was first published as a complete novel in 1917, it is in public domain. Anything published before 1923 in the U.S. is in the public domain, unless some other extenuating circumstances exist.

    Project Gutenberg makes public domain books available online as ‘e-texts’, and you can find the book in question here:
    http://www.gutenberg.org/etext/62
    and a computer generated audio version here:
    http://www.gutenberg.org/etext/8748

    Project Gutenberg’s catalog for this book states: “Not copyrighted in the United States. If you live elsewhere check the laws of your country before downloading this ebook.”

    The audio version of this book is under copyright.

  3. Project Gutenberg has it posted. They’re fairly scrupulous about observing copyright law.

    http://www.gutenberg.org/etext/62

    (I have a degree in history and another in library science and I’ve worked around/with and been fucked by copyright for years)

  4. If I recall correctly, anything published before 1923 is public domain in the US, so the next four books in the series are public domain as well. They’re available via Project Gutenberg. I believe the rest of his work becomes public domain in 2020.

    I’m no expert on IP law, but checking my copy of Publishing Law, there could be trademark issues, presumably related to the characters – it depends on what the copyright holder has been doing with the works. In the UK, the registration is originally for 10 years, and can be renewed indefinatly, so long as someone remembers to do so, and pays the registration fee. I’m reasonably sure US law is similar. It can cost upward of $750 to get an attorney to prepare an application for a trademark, but with a film theoretically in production, I’d suspect that someone’s got trademarks related to it. I’d be very surprised if they didn’t.

    So yes, in this case, I suspect that the public domain status of the text doesn’t mean a great deal, when it comes to adaptations. Everything’s too complicated to untangle without some effort, and many/most .

  5. It is public domain, which makes distributing it easy, and in the sane world would make adaptation easy. The problem is that this is not the sane world. This is the world where you can enforce an intellectual property claim with cease and desist letters and general threats, without ever having to prove that you’re not talking out your ass in court.

    In this strange, terrifying world, many things like Lovecraft, It’s a Wonderful Life, and A Princess of Mars are in the public domain, but it doesn’t actually matter because, generally speaking, large organizations with massive piles of money are willing to punch you a lot if you try to infringe on the copyrights that they made up. And because even if you’re in the right, their trained attack lawyers usually aren’t worth dealing with – especially if you’re a small comics company like IDW.

  6. Thanks to the Disney people for putting pressures on the American Congress all these years so they can still own a few old cartoons. They have fucked up Public Domain laws in the USA into the quagmire that it is today.

  7. I worked on an RPG based on the first few books that are PD in most places, but there’s such a stink around it – especially with the film in the works, that it simply doesn’t appear to be worth the trouble to go through with it, even on a removed, derivative work.

    Matters are complicated by the film, merchandising deal and other problems and when I tried to contact ERB Inc, they didn’t bother to contact me back, though I informed them of my intention.

    More of the books are PD in Australia but I think most of them are still tightly controlled in the UK. This complicates matters for me since I (mostly) publish electronically and, therefore, can’t control where they’re sold to.

    It’s BLOODY annoying!

    I’ve half a mind to just publish and be damned anyway, if I can find an outlet that’ll take it and see if it does cause a stir of any sort or not.

  8. Oh, and incidentally I think this is why League of Extraordinary Gentlemen II isn’t 100% explicit who it’s talking about with the Martian (Barsoomian) leader.

  9. My memory (from working at an eBook company a few years back) is that “Edgar Rice Burroughs” is one of the trademarks in play.

    Refer to all the Captain Marvel crap that’s still in play for the hoops that might have to be jumped through to get something out there that adapts the work without using any trademarked stuff on the cover.

  10. I worked for over 8 years in Copyrights & Permissions for a major U.S. publisher back in the 90s. In that time I saw many aggressive moves to stake any kind of proprietary rights claims.

    I had coversations with some lawyers who, essentially, wanted to void the concept of fair use. And I still think the Supreme Court “REAR WINDOW” decision was bullshit. In that ruling copyright was recaptured in the movie, which was in the public domain, because the short story still had copyright protection. (This also allowed IT’S A WONDERFUL LIFE to reclaim copyright protection.)

    I’ve had limited exposure to Trademark issues, but given my experience seeing the more clearly defined U.S. Copyright issues muddied, I believe you have to be very wary when there is a question about a work’s public domain status.

  11. In this strange, terrifying world, many things like Lovecraft, It’s a Wonderful Life, and A Princess of Mars are in the public domain, but it doesn’t actually matter because, generally speaking, large organizations with massive piles of money are willing to punch you a lot if you try to infringe on the copyrights that they made up.

    I was actually wondering about Lovecraft. I’ve noticed how everyone and his sister is shamelessly using the ‘Old Ones’ and tosses names like ‘Cthulhu’ around like they own it. That’s because it’s public domain? It would seem very few people seem to want to put a stop to that. Games, movies, novels, comics, tv, you can find Lovecraftian names and concept everywhere. (Not to mention the plush Cthulhu toys of course…..)

  12. My guess is that while the novel A PRINCESS OF MARS is in the public domain, the estate of ERB has registered as trademarks the likes of “John Carter”, “Barsoom”, “Tars Tarkas”, etc. Actually, I recall a board game called “John Carter: Warlord of Mars” being produced by SPI some years ago – perhaps they trademarked the names rather than the Burroughs estate?

  13. John Carter of Mars – is Trademarked.
    http://tess2.uspto.gov/bin/gate.exe?f=doc&state=geot71.2.1#

    As is ‘John Carter’

    It SAYS ‘Barsoom’ is, but it’s been used widely so I’m not sure of the validity of that.

    The Venus and Pellucidar books don’t seem to have been protected quite so much.

    An RPG company, not even doing an actual Barsoom game, has been strongarmed by ERB for doing a ‘Planetary Romance’ RPG that doesn’t namedrop at all, just follows the same themes.

    As far as I can make out, so long as you avoid the TMs and stick to the US public domain material for adaptation and derivation there really _SHOULDN’T_ (Emphasis mine) be a problem, but there is, because they have money and trained attack lawyers.