Public Domain/Copyright status of REH's Works and Creations

[Freebooter]

Hello,
If a person wrote some stories set in the Hyborean world of Conan, but not about Conan, just mentioning him sometimes or mentioning places or people mentioned in REH Conan stories, would that be a violation of copyright? If so, who owns the REH estate or who would you ask for permission to use REH's hyborean world as a setting, to mention places or his characters?
Thanks.
Freebooter

[deuce]

This is the company that owns the REH literary estate:

cabinetentertainment.com/robert_e_howard.html

If you don't have a lawyer that is expert in intellectual property and trademark law, I'd stick to posting fan fiction here.  

[BlackHeart]

So, if I finish "Day of the Lion", only place where it could see the light of the day would be HERE?

[deepermagic]

2019 is a landmark year in regards to works entering into the public domain (for the United States). Brief backstory: Disney+Government basically froze the public domain process some years back in order to protect the iconic Mickey Mouse.

From this article: www.theatlantic.com/technology/archive/2018/04/copywritten-so-dont-copy-me/557420/

The Sonny Bono Act was widely seen as a way to keep Disney’s Steamboat Willie from slipping into the public domain, which would allow that first appearance of Mickey Mouse in 1928 from being freely copied and distributed. By tweaking the law, Mickey got another 20-year reprieve. When that expires, Steamboat Willie can be given away, sold, remixed, turned pornographic, or anything else. (Mickey himself doesn’t lose protection as such, but his graphical appearance, his dialog, and any specific behavior in Steamboat Willie—his character traits—become likewise freely available. This was decided in a case involving Sherlock Holmes in 2014.)

This essentially froze works from entering the public domain for the last 20 years, which finally ended this year when everything from 1923 entered into the public domain. This also means that works from 1924 will enter in 2020, 1925's works in 2021, etc.


Now all of this makes me wonder a few things about Howard's works.

1) Does this put any kind of pressure on current license holders to put something out there?
For instance, the first Conan tale was published in 1932, which means it will enter the Public Domain in 9 years. Meaning in 2028 you, me, or anyone who wants can use "The Phoenix on the Sword" scot-free. And each year following that, more and more Conan tales will enter, giving people more and more for free. Considering TV/Film schedules, etc, 9 years is nothing. Do they want to wait it out only to be outdone by an independent studio to swoop in and take for free what they had the rights to less than a decade earlier?
    
My thought is that this kind of thing ought to put a fire under current license holders, but I'm sure other factors come into this. I just don't know enough.



2) What kind of an impact will this have on Howard's works?
If anyone can republish/adapt "The Phoenix on the Sword" in 2028, and more tales the years following, wouldn't you assume that we'd be conceivably looking at perhaps the biggest Howard boom of all? And remember 2028 is just Conan. The first Solomon Kane tale was published in 1928, meaning it'll now enter public domain in 1924...five years!!


How cool (and different) will it be only a handful of years from now. Today we're bemoaning that there's no one willing/able/capable of creating an REH-worthy Conan film or show. What's going to happen when people can start using these tales and characters freely?


3) How does this work with Trademarks?
I do know that names and such can be trademarked (which I'm positive is the case with Conan/Solomon Kane/etc), but even that might not be 100% foolproof, especially when the entire canon of a character becomes available. You may not be able to make a movie called "Conan" but you sure as hell can make one called "The Phoenix on the Sword" so long as you use the PD elements, which includes Conan.

A few years back the Edgar Rice Burroughs group sued a comic creator who used public domain Tarzan/John Carter material, not for copyright infringement, but for trademark infringement...they settled out of court and are best buds now or something, so there was no real decision, and thus, no precedent (that I can find) for something similar to Howard's characters. Now that the public domain wheels are turning again, I expect that there'll be some trademark lawsuits in the future that will either clear or muck things up (especially with Disney involved). But for now let's dream.

[paulmc]

"using these tales and characters freely?"

No, you can't.

As you state, once a story hits public domain anyone can reprint it. But they can only reprint that story.

The trademarked character of CONAN (or TARZAN) means that not only can you not use that in the title (or any part of your marketing (probably?)) -- it also means you CANNOT create new adventures or pastiches without the rights/permission.

[deepermagic]

Jan 16, 2019 13:58:00 GMT -5 paulmc said:

"using these tales and characters freely?"

No, you can't.

As you state, once a story hits public domain anyone can reprint it. But they can only reprint that story.

The trademarked character of CONAN (or TARZAN) means that not only can you not use that in the title (or any part of your marketing (probably?)) -- it also means you CANNOT create new adventures or pastiches without the rights/permission.

By "freely" I meant monetarily, as in, you don't need to pay for a costly license, and in the way used in the above quote, to copy and distribute, etc, freely, without restraint. 

[paulmc]

Ah, ok.

[deepermagic]

Jan 16, 2019 13:58:00 GMT -5 paulmc said:

The trademarked character of CONAN (or TARZAN) means that not only can you not use that in the title (or any part of your marketing (probably?)) -- it also means you CANNOT create new adventures or pastiches without the rights/permission.

I've been looking more into this and while I was thinking along the same lines as you here, that you can't create any new adventures/pastiches...from what I'm reading on copyright law/trademarks etc, I'm beginning to think that might not be the case. This article is pretty helpful, and I found the following information there:

Most of the [Sherlock Holmes] books are in the public domain, but the last few volumes are still under copyright. A few years ago, the estate of Arthur Conan Doyle tried to stop publication of a book based on the Sherlock Holmes character, arguing that the full complexity of the Holmes character wasn't revealed until later in the series. The Seventh Circuit appeals court rejected this argument, finding that people were free to create new Sherlock Holmes books as long as they didn't use elements of the Holmes canon that were introduced in books that were still under copyright.

It seems here that the court decided that people are free to use any and all elements found within the public domain works in order to create new books (the Sherlock book in question was an anthology full of new stories by modern authors, not adaptations or reprints of the old ones), just so long as they didn't include any elements still under copyright. 

More:

Anyone will be able to make new Batman cartoons after 2035, but they'll have to be careful to only use elements from Batman's original incarnation. Story lines, characters, and other elements that were released in later years will still be under copyright, so people will have to wait for those later editions of the series to expire before those elements will be free for anyone to use

So it seems that new creations/pastiches/adventures/etc actually are on the table (in 2028 for Conan) just so long as nothing still in copyright is included.

Even the trademark issue, while technically a real weapon, might not be an issue for people/companies who produce a work based on a public domain character like Conan, as long as they are distinguishable from the trademark holder. Basically if you make something with Mickey and you're up front that you aren't affiliated with Disney, it'd probably be okay. This is actually based on a previous court ruling too:

Disney holds both copyright and trademark protections for the Mickey Mouse character. Copyright protection expires; trademark doesn't. So even after all significant Mickey Mouse copyrights have expired, Disney could potentially use trademark law as a weapon against unauthorized Mickey Mouse products.



Grimmelmann calls this a "messy area for IP law." The big question for trademark law is whether consumers are confused about the origin of the product—in this case, whether they believe a product is official Disney merchandise. That might be an easier case for Disney to win if someone used Mickey's image to market an unrelated product like toothpaste.



But a company selling a Mickey Mouse toy or a new movie featuring Mickey Mouse would likely be on firmer legal ground, Grimmelmann argues. He points to a 2003 case where a company called Dastar republished portions of a television documentary based on a Dwight Eisenhower book. The copyright for the documentary had not been renewed, putting it into the public domain. Dastar edited it to strip out the original credits and present it as a Dastar production.



Twentieth Century Fox, which had owned the television rights before they expired, sued Dastar arguing that Dastar had violated trademark law by passing off Fox's work as its own. But the Supreme Court rejected that argument, noting that allowing the use of trademark law to restrict the republication of creative works would create "a species of mutant copyright law" that limits copying of public domain works.



"We have been careful to caution against misuse or overextension of trademark and related protections into areas traditionally occupied by patent or copyright," the high court wrote.



Grimmelmann argues that similar reasoning would preclude Disney from using its trademarks to restrict creative reuse of Mickey Mouse. "The broader principle the decision stands for is you can't use trademark law to control the distribution of a copyrighted work," he tells Ars.

So theoretically, the door could be open very soon for actual new stuff to be created with Howard's works/characters, beginning in the near future (so long as still copyrighted elements are not used). Note, I said theoretically, I have a feeling that more things are going to need to be cleared up in the future. Interesting, and potentially exciting, stuff!!

[deepermagic]

Jan 16, 2019 18:12:25 GMT -5 @kail said:

New Life for Old Classics


......

 Thanks for the link.

The article hits on a couple of my questions.

As to my first question, (Does this put any kind of pressure on current license holders to put something out there?) they mention the rightsholders for The Great Gatsby 

In anticipation of a flood of new editions of Fitzgerald’s “The Great Gatsby” when the copyright expires in 2021, the Fitzgerald estate and his publisher, Scribner, released a new edition of the novel in April, hoping to position it as the definitive version of the text.

So it does put pressure on some. A secret hope is that this deadline might put a fire under folks to give us a good Conan flick.


To my second question, (What kind of an impact will this have on Howard's works?) this is the type of thing I'd also envision:

 “Books are going to be available in a much wider variety now, and they’re going to be cheaper,” said Imke Reimers, an assistant professor of economics at Northeastern University who has studied the impact of copyright. “Consumers and readers are definitely going to benefit from this.”

A wider and cheaper variety of Howard's works? Sign me up. This is why I think there could be a Howard boom on the horizon.

[bobbyderie]

Technically, we're already in one: there's been a flood of cheap ebook editions of Howard's material, just check the amazon listings. The costs of online publishing are so low that pretty much anybody can grab copies of texts off Gutenberg or archive.org and put out their own edition (legal or not).

[deepermagic]

Jan 18, 2019 5:17:36 GMT -5 bobbyderie said:

Technically, we're already in one: there's been a flood of cheap ebook editions of Howard's material, just check the amazon listings. The costs of online publishing are so low that pretty much anybody can grab copies of texts off Gutenberg or archive.org and put out their own edition (legal or not).

I'd agree with that, but even still I think there'll be a bigger uptick when the tales are officially public domain.

I walk into a used bookstore today, say Half Price Books, and I search for a Howard book, there's maybe one or two, usually one of the Del Ray volumes. If I'm lucky they'll have an old pastiche paperback. And 99 out of 100 times it's only Conan. I've never, ever, seen anything outside of Sword & Sorcery. No fight stories, Elkins, etc. 

Now step an aisle over and you find LOADS of public domain works (Jane Austin, Arthur Conan Doyle, Mark Twain, Robert Louis Stevenson, etc) each one published by 15 different publishers and different editions, ranging from the cheapo paperback to the high quality hardback. And that's just the used bookstores. Looking for Howard in a place like Barnes & Noble? Forget it. But all of these authors are even found there in abundance. 

That's the kind of boom I'm looking forward to. Howard being put back on the shelves by a variety of different publishers. Becoming as common and classic as any of the authors I mentioned above. That kind of boom will only be possible through the public domain.

[terryallenuk]

If the new pastiche novels sell I'm sure Howard's stories will be repackaged by Perilous Worlds soon. They're already appearing in France.

[deepermagic]

Jan 18, 2019 14:02:15 GMT -5 terryallenuk said:

If the new pastiche novels sell I'm sure Howard's stories will be repackaged by Perilous Worlds soon. They're already appearing in France.

I hope they sell well.

I don't know who the publisher in France is for the Howard stories you mention (I couldn't find anything about them online...no idea how to speak french either...are they being published by Perilous Worlds?), but Howard's works are public domain in Europe!


(Frankly I'm sort of confused about what company owns the copyrights to Howards stuff...Cabinet? Perilous Worlds? Heroic Signatures? Is it all one group divided into different companies? Going back to my first question in the OP I'd be extremely interesting to ask some folks from those groups their thoughts on the upcoming public domain issue.)

[terryallenuk]

This is the site for the French books www.livredepoche.com/auteur/robert-e-howard

Cabinet own the rights , PW and HS are part of the same group I believe.

As for the PD question not sure_anyone_knows for sure LOL

[deepermagic]

Jan 19, 2019 13:38:30 GMT -5 terryallenuk said:

This is the site for the French books www.livredepoche.com/auteur/robert-e-howard

Cabinet own the rights , PW and HS are part of the same group I believe.

As for the PD question not sure_anyone_knows for sure LOL

Cool. Thanks for the link. Wikipedia shows that the publisher is akin to Penguin for us English readers.

After a bit of research I found the same. Cabinet owns the rights (used to be Paradox) and has separate divisions for different mediums (TV/Books/Etc)

As for the Public Domain (PD) question, it seems there's been a ton of confusion regarding which Howard works are and aren't in the PD, but what I'm discussing here is that all of the confusion will officially come to an end very soon. The expiration of the copyright will virtually put to bed all confusing questions on whether or not this or that is PD. So in 2028, when the copyright for Phoenix on the Sword expires, there'll be no question anymore.

Come to think of it, perhaps this really is why we're seeing an uptick in Conan via Marvel and the pastiches...Whether or not you've been happy with how Cabinet has used Howard's IP characters, their days owning the rights are literally numbered.

The more I keep researching this, the more excited I get.