a legal clarification

Let me expand on something I wrote in yesterday’s post: Copyright law is not relevant to the legal situation of Francis Spufford’s new Narnia novel. What matters is trademark law.

To illustrate: Many of Edgar Rice Burroughs’s books, including many of his Tarzan books, are now in the public domain. But people are not publishing Tarzan novels. Why not? Because Edgar Rice Burroughs Inc. has trademarked “Tarzan” (and several other names) and will sue your pants off if you try to publish a Tarzan book without paying them what they think it’s worth.

Fifteen years from now copyright will expire on C. S. Lewis’s Narnia novels and they will come into the public domain. At that point anyone will be able to publish them, just as anyone today can publish a Charles Dickens novel. People will be able to edit and adapt them, making Susan Queen of Narnia and having Peter be the one who turns his back on Aslan, if they want. But they won’t be free to publish new Narnia novels because “Narnia” and its appurtenances are trademarked by C S Lewis PTE, and that won’t change in 2034.

Come to think of it, it’s possible that C S Lewis PTE will try to use its trademark to prevent, or at least control, publication of public domain books; which might even work, in some court or other. What happens when copyright law points in one direction and trademark law in another? If Disney holds a trademark on Mickey Mouse but Steamboat Willie is in the public domain, what does that mean for some auteur who wants to incorporate the film into a new film, a new work of art, from which she hopes to make money? As restrictive as copyright can be, it expires; trademarks, if they are defended, do not.

These issues have yet to be sorted out in court. But If we want to make books like The Stone Table possible, we need to revise not copyright law but trademark law.