Tarzan has left the building

by Steven Price / 15 January, 2005
Why can't Nigel Cox's novel <i>Tarzan Presley</i>, in which pop icons Tarzan and Elvis are one and the same, be sold overseas?

When Nigel Cox was writing his novel Tarzan Presley, a whimsical re-imagining of the Tarzan myth in which Tarzan grows up in the wilds of the Wairarapa and goes on to become the King of Rock'n'roll, he felt a prickle of concern. Copyright. "Could be an issue, Nigel," he thought. "But what was I going to do, write a letter to ... whom, I couldn't imagine ... saying, 'I think I might be going to write a book in which a character from one of your books might appear, though in radically changed form - is that okay?'"

Nah. "It's just not something you'd do."

Besides, he figured that plundering others' ideas for inspiration is a noble and time-honoured literary tradition. He's right. Shakespeare's plots were hoary old chestnuts. The first Mickey Mouse cartoon "Steamboat Willie" was a parody of a Buster Keaton film released earlier the same year called Steamboat Bill, Jr, which in turn was based on a song.

Alice Randall's The Wind Done Gone reworked Gone with the Wind through the eyes of a slave on Scarlett O'Hara's plantation (and survived a copyright lawsuit). Lolita has been rewritten from Lolita's point of view; Robinson Crusoe through Friday's eyes; and Jane Eyre from the perspective of mad Mrs Rochester.

Even the original Tarzan books by Edgar Rice Burroughs contain echoes of Mowgli in Kipling's The Jungle Book. Burroughs never asked Kipling's permission to write his Tarzan stories.

If Cox had written that letter, he would have needed to address it to Edgar Rice Burroughs Inc, an American corporation, based in Tarzana, California, which manages the interests of Burroughs's heirs.

And if he'd written that letter, ERB Inc would have told him that if he wrote the book they would sue him for stealing their intellectual property.

But Cox didn't write the letter, and so it wasn't until after Tarzan Presley was published, had received critical acclaim and reached number two on New Zealand's bestselling fiction chart that the threatening letter arrived from ERB Inc.

The corporation's UK lawyers had cunningly purchased a copy of Tarzan Presley over the Internet, bringing into play UK copyright law. Over there, and in the US, copyright lasts for 70 years after the death of the author. (Burroughs died in 1950.) In New Zealand, it's 50 years. They wanted damages, legal costs, and undertakings not to breach their rights further, or they'd go to court.

This was a threat to be taken seriously. ERB Inc is not shy of court action. And it is not fond of portrayals of Tarzan that it believes pollute its brand. Last year, for instance, it took Dejan Nikitovic of Slovenia to the World Intellectual Property Organisation to shut down his website, tarzansex.com. Perhaps more controversially, it won a court battle in 1981 against porn magazine High Society for a feature depicting Tarzan and Jane getting it on. The magazine's lawyers unsuccessfully argued that it was a parody: "[Burroughs] has created an erotic atmosphere of a virile male living in an out-of-wedlock relationship and fathering an illegitimate child ... the article is a contemporary commentary based on a newsworthy character."

Among many other lawsuits, ERB Inc has also has twice tried to stop movie giant MGM from remaking Tarzan of the Apes, even though it had granted MGM the right to do so in 1931. ERB Inc failed both times.

Still, Fergus Barrowman, the publisher at Victoria University Press, knew that ERB Inc meant business.

"What they're doing is legal terrorism," he says. "We're not taking anything from them. We're not competing with their product. It's not plagiarism or piracy. The book is completely open about what it is."

What's more, Barrowman says that ERB Inc is trying to rob society of something that belongs to us all.

"Tarzan is so much a part of the general culture and discourse that I believe it ought to be part of the public domain."

Cox agrees. "The novel completely remakes the characters it portrays, expands and changes them so that they are an entirely new thing under the sun," he says. "Okay, not entirely new, I agree - their names and some of the general circumstances do come from Tarzan of the Apes. But if we are not able, as the culture moves forward, to use and develop those characters - or archetypes, or stereotypes, or mythological figures, which is what I suggest both Tarzan and Elvis are (as well as also being other things) - then it's a narrow, boring and shallow future ahead of us and I pray that it can be avoided."

How can someone own the concept of Tarzan? There are essentially two strands to ERB Inc's claim. One is breach of copyright. Copyright attaches itself automatically to all original artistic works, and gives the makers the right to reap the rewards for their creative efforts - for a limited time. It stops other people making copies without their permission, until that limited time expires, after which the work falls into the public domain for anyone to use any way they please.

It protects the way the ideas are expressed, but it doesn't protect the ideas themselves. So the Listener could sue you for photocopying this article and trying to sell the copy, but it can't prevent you writing about it in your own words.

But which was Cox doing? He wasn't copying the original Tarzan story verbatim. He didn't lift any passages at all. He did, though, borrow some of the -storyline and central characters. The courts have sometimes treated such borrowings as copies. It depends how "substantial" the borrowing is.

Professor Graeme Austin, a Kiwi who teaches intellectual property law at the University of Arizona, says that Cox's book might be protected as a legitimate parody in the US, but that the parody defence is much less developed in other countries, including the UK and New Zealand. "The line between a genuine parody and free-riding is always difficult to draw, but this is an area where New Zealand's intellectual property law might learn from the US."

The second strand in ERB Inc's claim is breach of trademark, or a similar action called "passing off". These argue that consumers will be confused into thinking that Tarzan Presley was produced or authorised by the same folk who brought us the original Tarzan magazines, books, comics, movies and radio show. (ERB Inc -registered its Tarzan trademark in New Zealand in 1967.)

Would buyers be confused? VUP points out that the cover of Tarzan Presley sports a pulpy 1950s look; sure, Tarzan is in the jungle, but he has an Elvis Presley haircut and he's crooning into a microphone; and the publisher is clearly identified. Who's going to be misled?

But Austin isn't so sure. He says it's not absurd to think that consumers - even in New Zealand - might get mixed up about the source of a book with Tarzan in its title. "Consumers are increasingly familiar with sequels and character merchandising," he says.

"The law will sometimes protect these marketing practices, as well as consumers' expectation that what they're buying is authorised by the intellectual property owner."

Still, Barrowman says, VUP's lawyers advised that ERB's case was weak, at least in New Zealand, where its copyright has expired. But they cautioned that a legal battle would be cripplingly expensive. All-out war in three countries could run to half a million dollars. VUP and Cox settled, agreeing not to authorise any copies to be exported, and to change the names of the characters if the book is ever reprinted. (Perhaps Cox could use "Zantar" or "Tublat-zan", the original names for Tarzan, eventually discarded by Burroughs.)

This, it seems, is the way of the intellectual property world. Legal threats are based on financial heft and not necessarily legal principle. Stanford law professor Lawrence Lessig railed against it in his recent book Free Culture. "This is the world of the mafia - filled with 'your money or your life' offers, governed in the end not by the courts but by the threats that the law empowers copyright holders to exercise," he writes. Heavy penalties, astronomical legal costs and vaguely defined laws have produced a "highly regulated, monopolised market in cultural icons". Innovators can cultivate and transform those icons "only if they have sign-off from last generation's dominant industries".

What does ERB Inc have to say?

"Our client has simply enforced its intellectual property rights," said its lawyers tersely. They could also fairly have reasoned that ERB Inc has invested megabucks in developing its brand, and intellectual property law is there to stop other people freeloading on its investment - or corrupting its image.

Austin explains that even if some copyright plaintiffs are overreaching, the essence of copyright law is to protect authors: "for a society that values creativity, weak copyright laws could be far worse".

But does the law - and the law in action - strike the right balance? To protect creativity, are we destroying it? There's a more at stake than a novel about Tarzan - lawsuits have been threatened or filed for music-sharing over the Internet, guerrilla political art that draws from popular culture, websites that clip news and information for communities of interest such as scientists, commercial images caught in the background of documentaries, fan websites that lovingly summarise (and sometimes invent) plotlines from TV shows; even Girl Guide camps singing copyrighted songs such as "Happy Birthday".

The bottom line is unsettling: it is not clear how much of our culture is truly "ours".

Steven Price is the Fellow in Law and Journalism at Victoria University.

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