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Old 08-21-2019, 10:32 PM   #821
nearmint
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I'm guessing that's exactly what's happening. Sideshow went in with the understanding that the character was in the public domain, someone (the estate?) threatened to sue, and it was just easier for Sideshow to eliminate all references to Dejah Thoris.

I wouldn't assume that Sideshow is trying to get around paying a legitimate license holder without more facts. Litigation to prove the character is in the public domain might not be an expense their willing to take on.
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Dejah Thoris is copyrighted by Edgar Rice Burroughs Inc (presumably the company of his estate) and you need their permission to use the name commercially... Dynamite has this permission, but apparently Sideshow does not... Since it took me all of 30 seconds to determine the copyright status of Dejah Thoris, there had to be no way Sideshow could have thought it was in the public domain. If Sideshow was legitimately trying to obtain permission to use the name for the statue, they would have never let it go beyond a prototype before getting approval from ERB in writing. Given that they put this into production without apparent permission from ERB, I can only surmise that they were deliberately trying to flaunt ERBs copyright, and just see if ERB would challenge them, which presumably they did. All in all, a pretty crappy way to do business on Sideshow's part...
I’m sorry, but that’s simply not correct. ERB’s early work is now in the public domain. The estate does not hold the copyright. The estate attempted to get around that by trademarking many Barsoom related names and places. The legality of trademarking names from a public domain work of fiction is pretty murky.

Dynamite did not initially have permission from the estate. The estate sued Dynamite, claiming that some images in the comics were pornographic and damaged their trademarks (not copyright). Before a judge could decide whether that legal argument had a leg to stand on, the estate and Dynamite settled.

The estate has a history of threatening legal action. In 2004, they threatened to sue an New Zealand publisher about to release a Tarzan novel. The publisher’s legal team informed the publisher that ERB had no case as Tarzan was clearly public domain. The publisher, concerned about legal fees, gave in.

You claim Sideshow is acting the bully, but I’m finding multiple articles casting the ERB estate in that very roll several times in the last few decades.
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Old 08-21-2019, 10:42 PM   #822
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I go back to wondering if Sideshow needed to ship the chains unattached for production reasons, and ERB’s estate said it was too pornographic.
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Old 08-21-2019, 11:23 PM   #823
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It can’t be about the titties. If it was, why would t they flip ---- when artists draw her topless? Dynamite has comic covers with her topless. Artist do commissions all the time with her naked. Some of those pieces of art make it into poster/artist books.

Has to be a name/likeness issue. SS should just suck it up and pay the license. Can’t be anywhere near the cost of Marvel.
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Old 08-21-2019, 11:33 PM   #824
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SS should just suck it up and pay the license. Can’t be anywhere near the cost of Marvel.
There’s no license for a character in the public domain. I think Sideshow is avoiding a frivolous lawsuit from the ERB estate.
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Old 08-21-2019, 11:47 PM   #825
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Are we sure she is public domain? I thought it was found “some” were and some were not.
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Old 08-21-2019, 11:54 PM   #826
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Originally Posted by desertdragon View Post
Dejah Thoris is copyrighted by Edgar Rice Burroughs Inc (presumably the company of his estate) and you need their permission to use the name commercially... Dynamite has this permission, but apparently Sideshow does not... Since it took me all of 30 seconds to determine the copyright status of Dejah Thoris, there had to be no way Sideshow could have thought it was in the public domain. If Sideshow was legitimately trying to obtain permission to use the name for the statue, they would have never let it go beyond a prototype before getting approval from ERB in writing. Given that they put this into production without apparent permission from ERB, I can only surmise that they were deliberately trying to flaunt ERBs copyright, and just see if ERB would challenge them, which presumably they did. All in all, a pretty crappy way to do business on Sideshow's part...
Slight correction. “Dejah Thoris” is a trademark of ERB Inc. The first several books are free from copyright as they are public domain. ERB Inc. uses the trademarks and trademark law to “protect” the ERB “brand”. Thus items bearing the name Dejah Thoris require the approval of ERB. And obviously approval will come at monetary cost.
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Old 08-22-2019, 12:00 AM   #827
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Originally Posted by nearmint View Post
There’s no license for a character in the public domain. I think Sideshow is avoiding a frivolous lawsuit from the ERB estate.
Correct, there is no license for a character in the public domain thus why Sideshow can make a statue that matches the description of Dejah Thoris from the books that are in the public domain. But...ERB owns the trademark to the name. Thus Sideshow cannot use that trademark without ERB approval. This is how companies are playing the public domain game by leveraging trademark laws instead of copyright to continue to monetize properties that are in the public domain. And this does defeat the purpose of public domain. Works of fiction should go into the public domain just like how patents expire.

Very neat discussion on PublicDomainSherpa
http://www.publicdomainsherpa.com/trademark.html
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Old 08-22-2019, 12:03 AM   #828
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Originally Posted by jedi_don View Post
Slight correction. “Dejah Thoris” is a trademark of ERB Inc. The first several books are free from copyright as they are public domain. ERB Inc. uses the trademarks and trademark law to “protect” the ERB “brand”. Thus items bearing the name Dejah Thoris require the approval of ERB. And obviously approval will come at monetary cost.
But from what I’ve read, the legality of trademarking characters from works in the public domain is pretty shaky. The ERB estate comes on strong against companies they feel are violating their trademark. Until one of those companies stands up to them and goes to court, we don’t know if the court would rule in ERB’s favor.

Remember, in the Dynamite lawsuit, ERB wasn’t claiming that Dynamite didn’t have the right to publish comics with the John Carter characters, they were claiming that the interpretation was pornographic, and therefore damaged their trademarks.
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Old 08-22-2019, 12:17 AM   #829
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But from what I’ve read, the legality of trademarking characters from works in the public domain is pretty shaky. The ERB estate comes on strong against companies they feel are violating their trademark. Until one of those companies stands up to them and goes to court, we don’t know if the court would rule in ERB’s favor.

Remember, in the Dynamite lawsuit, ERB wasn’t claiming that Dynamite didn’t have the right to publish comics with the John Carter characters, they were claiming that the interpretation was pornographic, and therefore damaged their trademarks.

I think what adds to ERB’s argument is that there are works containing these characters that are not yet in the public domain. As such, ERB has the right to license that intellectual property. With that, ERB did claim that Dynamite’s derivate use of these trademarked characters was damaging to their brand. Once all of the works of these characters are in the public domain, I’m not sure ERB will have a legal “leg to stand on”. But we’ll have to wait and see as new legal precedence will likely be established.

I laughed when I read about ERB Inc calling Dynamite’s as pornographic. Have they not read these books? Everyone on Barsoom are naked.
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Old 08-22-2019, 12:32 AM   #830
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I think what adds to ERB’s argument is that there are works containing these characters that are not yet in the public domain. As such, ERB has the right to license that intellectual property. With that, ERB did claim that Dynamite’s derivate use of these trademarked characters was damaging to their brand. Once all of the works of these characters are in the public domain, I’m not sure ERB will have a legal “leg to stand on”. But we’ll have to wait and see as new legal precedence will likely be established.
Characters are only copyrighted as part of a larger protected work, like a novel. With that in mind, Sideshow should be able to say that the statue represents Dejah from Princess of Mars, or any of the novels in the public domain.
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