Life after death on Mars: a reader asks ...

One of our readers (let's call him Dave, since that's his name) has just written in with this question:

"I'm interested in writing a book set in the John Carter of Mars universe, created by Edgar Rice Burroughs. The first four books of the Mars series were published in the US prior to 1922, so I believe I'm in the clear from a copyright perspective to put the book up for sale in the U.S. Burroughs died in 1950, so the the remainder of his the books in the series aren't in the public domain globally until 2020 at the earliest.

The sticky wicket is, the Burroughs estate has been rather aggressive in protecting the John Carter 'brand' (as well as Tarzan), by coming at it from a trade mark tack [coincidentally, the Burroughs' Community trade mark application for JOHN CARTER was published only last week].

I'm wondering how likely I would be to get a cease and desist, or worse, if I wrote a book which only referenced the characters and events depicted in the Mars books 1-4. Is there a precedent for this, with estates or companies trade marking the property in such a way that no new works can be created. Or, since the titles I would be referencing are in the public domain here in the states - am I pretty safe if I keep any sales within our borders?"

Readers will instantly spot that this is a trade mark issue, to the extent that the use of characters whose names and possibly likenesses are protected as trade marks may -- or may not -- be a trade mark use if used in the title or narrative of a book. There is also that old favourite question about whether there is such a thing as copyright in a fictional character per se or in the manner in which that character is depicted.  Readers' comments are welcomed, as ever.

There's an entertaining and fairly polemical article which touches on some of these issues by Paul Reeskamp: "Dr No in trade mark country: a Dutch point of view", Journal of Intellectual Property Law & Practice (2010) 5 (1): 29-38 (abstract here). I expect that there's plenty more out there, but Paul's piece sticks in my mind since I had to edit it for publication ...