Copyright vs Trademark in Characters in Novels

[Phiroshaw]

A friend published a novel last year using a character created by an author who died in the 1920s, but had to pull the title after a media company got in touch with his publisher to say that owned the copyright/trademark on the character, having bought it from the family of the creator just before the end of the 70 year term.

HIs publisher is small and cannot afford to challenge this in court against a large media company, but is this legitimate? And if so, why don't more people do the same thing - for example with Sherlock Holmes recently?

 

[quincy]

A friend published a novel last year using a character created by an author who died in the 1920s, but had to pull the title after a media company got in touch with his publisher to say that owned the copyright/trademark on the character, having bought it from the family of the creator just before the end of the 70 year term.

HIs publisher is small and cannot afford to challenge this in court against a large media company, but is this legitimate? And if so, why don't more people do the same thing - for example with Sherlock Holmes recently?

What is the name of your state or, if not in the U.S., what is the name of your country?

 

[Phiroshaw]

What is the name of your state or, if not in the U.S., what is the name of your country?

He's based in Boston, Mass, but his publisher is based in London, England.

 

[quincy]

He's based in Boston, Mass, but his publisher is based in London, England.

If the author died in 1920, the novel would now be in the public domain, the copyrighted characters along with the novel. Even if the copyrights were transferred to another owner prior to the author's death, the transfer would not extend the copyright on the work.

However, the new owner could have capitalized off the popularity of a distinctive character in the novel by registering the character as a trademark to identify a product or service. By using the character as a trademark, the holder of the mark can effectively eliminate most uses of the character by others.

I can't tell you if the large media company has a legitimate claim to the character your friend used in his novel. A review by an attorney would be necessary. Fighting a large company, though, can get costly.

 

[quincy]

You mentioned Sherlock Holmes.

The following is a link to another FA thread, started by forum member FlyingRon, that discusses the dispute over the rights in Sherlock Holmes. Because the thread is recent, it is easier to provide that to you than to discuss all over again what FlyingRon and I covered there.

https://forum.freeadvice.com/us-supreme-court-constitution-25/despite-earlier-losses-estate-dame-jean-conan-doyle-again-607643.html