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Carnival of Souls lawsuit can continue against HarperCollins

A federal judge last week rejected a bid by HarperCollins to dismiss claims by comics creator Jazan Wild that the title of Melissa Marr’s new fantasy novel Carnival of Souls infringes on his trademark.

Law360 reports that in denying the motion, U.S. District Judge Josephine Staton Tucker disagreed with the publisher’s assertion that the trademark was invalid because it applied to the title of a single comic, finding that Wild (aka Jason Barnes) had demonstrated his Carnival of Souls is a series.

The judge also didn’t buy HarperCollins’ argument that the title of Marr’s book is protected by the First Amendment, pointing to Wild’s claim that the publisher “deliberately chose a confusingly similar title for its competing book in the same genre.” That allegation raises what Tucker deemed is “a factual question as to whether [Marr's] book is likely to confuse consumers as to the origin of its source. The court cannot determine, as a matter of law, that it does not.”

However, while the judge kept Wild’s trademark-infringement claims in place, she dismissed the accusation of trademark dilution, supporting HarperCollins’ assertion that the title of Marr’s book has an artistic component that constitutes a noncommercial use of a trademark — and therefore not actionable under the Lanham Act.

Wild’s July lawsuit against HarperCollins gained attention in September after he sent cease-and-desist letters to book-review websites that published excerpts of Marr’s novel, claiming they amounted to a “willful and malicious infringement” of his “Carnival of Souls” trademark. Wild’s attorney Ted Shiells later attempted to clarify his client’s emails, insisting he “was not threatening to sue any of these persons” but rather “only intended to make them aware of his trademark rights in CARNIVAL OF SOULS, to minimize the confusion he has already suffered.” (It should be noted, however, that cease-and-desist notices, by their very nature, are threats of legal action.)

Wild, whose Jazan Wild’s Carnival of Souls debuted in 2005, is perhaps best known for the $60 million lawsuit he filed in 2010 claiming that NBC Universal and producer Tim Kring ripped off the “carnival of lost souls and outcasts” that menaced the final season of the television drama Heroes. He more recently sued a songwriter over a graphic novel biography deal that went bad.

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13 Comments

TRADEMARKS DO NOT WORK THAT WAY! GOOD NIGHT!!

Charles J. Baserap

December 4, 2012 at 9:45 am

Sounds like the guy wasn’t the success he hoped and now tries to make a living by suing anyone he can. The Heroes lawsuit was a laugh riot, given the utter unoriginality of his own work.

Before all these frivolous lawsuits, I had never heard of Wild or his series, and I highly doubt HarperCollins had either, much less looked at these obscure indie comics and said “Here’s something we can rip off!”

Herk Harvey should sue them both! ;)

Collins needs to at least do research of titles before they claim it as their own. Regardless how many lawsuits he’s gone through he obviously believes in his work and that a huge corporation can’t just take what they want with out doing their due diligence.

Sure, hollywood or a publisher has no reason to raid “obscure indie comics” because they are known for their originality. lol C’mon! The highest grossing movies the last decade have been from intellectual properties that started as obscure comics. So, yeah, Novels and Movies are too good for us comic folk. The comic book community including this guy, Mr. Wild, are creative people who aren’t rich. I’m sure he’d prefer to be writing than wasting money he doesn’t have on something frivolous. The Author of the Harper Collins novel herself may not be deliberately doing this but what do you get when you have a huge publisher, film studio or a rich songwriter? How about a herd of greedy lawyers and guess what? Their job isn’t to write, draw or act…. it’s to bleed every penny from their clients and their clients competition like soulless vampires in armani. As a comic community we should be saluting this guy. We truly are collective Judas’s.

@Bruce

I’m not saying Hollywood and the other big entertainment industries are not without their sins. But from what I understand of the lawsuit, the suit is over the use of the term “Carnival Of Souls” not the actual content of the comics. That phrase long pre-dates his comics. I know when I hear it, I think of the 1962 horror movie. According to Wikipedia, it is also the name of a Buffy novel and several bands have used it for album titles. All Mr. Wild seems to have done (or claims to have done, I keep reading different interpretations of the law whenever this story rears its head) is register the phrase “Carnival Of Souls” as a series name, so if HarperCollins IS guilty of anything, it’s in not doing its legal due diligence. Let’s consider that before we hoist up Mr. Wild as a martyr for creator rights just yet…

it is going to be tough for Carnival of Souls to hold up long time…that title has been in use for quite some time, with similar themes.

defiance defiant.

December 5, 2012 at 4:36 am

Carnival of Souls in “this” case only pertains to novels and comics, or literary.

its important for those talking about it like this to remember you cant trademark within multiple mediums…you only get one or at most three mediums to which u may own a valid trademark, before it becomes a monopoly on the name…music & film trademarks don’t count in this case. they are different mediums.—only comics, and novels. example, “if” i own a comic trademark: batman, i cant own any song about him. i can only own comics and novels. usually the studio i work with on a film adaption, owns the “film version” or trademark of him. this also usually transcends to tv rights. — which is why DC and Warner decided to form one company, so there would be fewer legal disputes & DC let them buy them out.

“… which is why DC and Warner decided to form one company, so there would be fewer legal disputes & DC let them buy them out.”

No, DC Comics is a subsidiary of Warner Bros. because, in 1967, National Periodical Publications was sold to Kinney National Company, which then bought the newly formed Warner Bros.-Seven Arts, creating Warner Communications. In 1989 Warner Bros. Communications merged with Time Inc., forming Time-Warner.

“… you only get one or at most three mediums to which u may own a valid trademark, before it becomes a monopoly on the name”

IF that were true, a publisher like DC Comics would be heavily limited in how it can exploit, say, Batman. As it stands, DC/Warner Communications/National Periodicals holds Batman trademarks for comic books, television, movies, video games, interactive software, mouse pads, amusement park rides, breakfast cereals, records, T-shirts, hats, lunchboxes, and so on (a trademark search for “Batman” produces a staggering number of “live” results).

Wow… I have seen a lot of venom directed toward a pretty simple case. So far this page is pretty tame, but some of the others? …. just… wow.

I’m not really familiar with Wild’s comic or his work, so I cannot comment on any talent he may or may not have. But it seems that many simply want him and his claims to be dismissed because they don’t like him, his product, etc. But that’s not really germaine to this matter is it? It doesn’t matter if this guy is the comic book equivalent of Shakespeare or not- the case has facts and it is best to stick to them.

Here are the facts:

1. Wild has the trademark to use the title in a variety of media. If the term was considered “too common” to be used, then don’t you think the Trademark request would have been refused? As an example, consider that DC owns the trademark on Superman – now consider how common that phrase/title has become. It doesn’t stop DC from continuing to renew that trademark thoiugh, does it?

2. HarperCollins knows full well that Wild owns this trademark and that, quite frankly, they are bigger than he is. They have access to more lawyers, more money for legal fees, etc. They could try to extend this case out until they get their product out there and make whatever money they are hoping to make on it. Do a simple Google Search and you will sadly find many cases similar to this one. Corporate bullying isn’t new. HC could appeal and extend until they either exhaust Wild’s original trademark or his finances or both.

3. Is HarperCollins marketing their book as a series (thus violating Wild’s trademark?) Wild seems to think so, and has stated in his comments on message boards that he has “exhibits” for the courts to see. Additionally his attorney has made similar assertions. And it seems that the courts have determined in his favor so far.

4. Why did Wild send letters to websites, etc. that were publishing excerpts from the HC book? Seriously, this isn’t that hard to figure out. PUBLICITY. Is it because he is a drama-queen who wants the spotlight? Maybe he is, maybe he isn’t… I cannot judge the man personally, because I’ve never met him.. but I will tell you this- if he had not started kicking over apple carts, nobody would even know of this case.

HC is a LOT bigger than he is and would normally squash him the legal proceedings. This was an attempt to draw the public attention to the matter and sway public opinion to the “little guy takes on Big Corporation” fight. HC has stockholders, etc. and public opinion really does matter to theses corporations.

SO…. it doesn’t matter if you love or hate Wild. It doesn’t matter if you love or hate his books. There is right and wrong (legally speaking) here that needs to be addressed. And if HC is guilty of what Wild has accused them of? He has every right to go after them legally.

DC owns the rights to Superman (fictional character), not the Nietzschean theory that the concept was drawn from. The concept existed well before Siegel and Schuster wrote “The Reign of the Superman” (1933), and several novels dealing with the tribulations of a super-human among ordinary people were already in the cultural lexicon of the time and known to the nascent ‘scientifiction community’ which included Joe and Jerry.

Ms. Marr – and by proxy HarperC – apparently lived completely unaware of the trademark until the confrontation, which sort of lames the ‘malicious intent’ theory that’s getting thrown around. It just seems too unlikely that it was a malicious act rather than someone going ahead with a completely unrelated and hard-to-confuse separate work, already in progress. I have never heard reference to “Jazan Wild’s Carnival of Souls: (Insert Volume title/number)” in anything but those words. There is no way that I – or any reasonable person who is familiar with the work – could confuse that with calling something “Carnival of Souls” (which always actually makes me think of Ray Bradbury for some reason, before anything else, even though “Something Wicked This Way Comes” (OMG that’s the same as another well-known thing!) has little to do with any of this, it’s just my fave haunted-circus-type-thing).

Authors aren’t like Mouseketeers – the company doesn’t buy them as children and groom them for entertainment. They have to work to get published and gain notice. When it works, and your stuff is good and taps into an underserved audience you get published. Sometimes it REALLY works, and you get contracts and mass-market distribution and fancy lawyers and the adulation of rabid fans. Sometimes people never go past a limited, self-published existence with a dedicated fraction of fandom. And sometimes, just sometimes, someone comes up with a universe that becomes an industry in its own right, and that might be meteoric, or it might take decades. One might not even live to see one’s work enshrined in such ways (PKD, we miss you).

And then, some people are upset by the hand they’re being dealt, and that can express itself in many unpleasant ways. Expensive ways, too.

Would I know about JW’s CoS if the case hadn’t started threatening reviewers no bigger than him (those ‘apple carts’) with legal proceedings as a first introduction and garnering the attention of N. Gaiman et al? Possibly, but unlikely. Is HC guilty? Maybe of rudeness, but I really think trying to trademark a trope is just asking for trouble. Frankly I am starting to think that the Barneses are the victims of an elaborate joke perpetrated by their legal advisors – it’s the only possible explanation. Will I enter this carnival? I’m trying, but it’s hard. I keep getting reminded of other source material.

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