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Tarzan illustrator contesting 'work for hire' status gets over the rail

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    NMU         NEW YORK         Copyrights & Trademarks         May 18, 2001    

Tarzan illustrator contesting ‘work for hire’ status gets over the rail

  • A federal district judge in New York decided the facts in the case of an illustrator for the Tarzan books warrant a closer examination.

A federal district court judge in New York ruled on May 15 that a jury should decide whether two Tarzan books published in the 1970s were”works for hire” under copyright law. The court allowed the estate of the books’ illustrator to proceed with a lawsuit against the corporation started by Edgar Rice Burroughs, the author of the original Tarzan book.

Burroughs published “Tarzan of the Apes” in 1912. Prior to his death in 1950, Burroughs set up a corporation to control the licensing rights of Tarzan. The corporation is controlled by his descendants.

Burne Hogarth illustrated the syndicated Tarzan comic strip from 1937 to 1950. In the 1970s, Hogarth illustrated two Tarzan books under an agreement with the Burroughs corporation. Hogarth was listed as the co-author of both books in applications to the Copyright Office.

When Disney released its 1999 animated film “Disney’s Tarzan,” the Hogarth estate asserted that Disney infringed on its intellectual property rights. The Burroughs corporation, which licensed the character to Disney, claimed it “always had control of the Tarzan character.” The Burroughs corporation also maintained that Hogarth worked as its employee when he illustrated the books.

The Hogarth estate sued the Burroughs corporation in December 2000 and sought a declaration from a federal district court judge that Burne Hogarth did not work for hire and the estate was the sole owner and copyright proprietor of the renewal term of the books.

When the Burroughs corporation asked the judge to dismiss the case because it lacked a factual dispute, District Court Judge Denise Cote denied the motion.

By denying the motion for summary judgment, the judge decided that a fact finder must determine whether Burne Hogarth was in fact the author. At the time of the writing of the books, the test was whether the work is made at the hiring party’s “instance and expense.”

The court noted that Hogarth had the initial idea for the 1970s books, thus calling into question whether the books were made at the Burroughs corporation’s “instance.” The court was also persuaded by a 1970 agreement that Hogarth would be the “final judge of the artwork,” which would demonstrate that the corporation would not control his work.

The judge also relied on the presumption created in favor of Hogarth due to the copyright registration reflecting his authorship in the books. Finally, the judge noted that each of the books contained an introduction with dozens of pages devoted to Hogarth and his artistic achievements.

The judge ruled the litigation will now proceed to trial.

(Estate of Hogarth v. Edgar Rice Burroughs, Inc.; Media counsel: (Plaintiff) James H. Neale, Henry G. Burnett, Owens & Davis, New York; (Defendant) Roger L. Zissu, Fross Zelnick Lehrman & Zissu, New York) DB


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