Second Circuit Affirms Ruling On Tarzan Rights

The U.S. Court of Appeals for the Second Circuit decided that illustrations and introductions for two Tarzan books made by artist Burne Hogarth at the “instance and expense” of the estate of Tarzan creator Edgar Rice Burroughs (ERB) were works for hire. The Estate of Hogarth v. Edgar Rice Burroughs Inc. (ERB), 02-7312. Thus, Burroughs' estate retained the original and renewal copyrights in the books.

Affirming a district court ruling in favor of ERB, the appeals court noted that the two books, “Tarzan of the Apes” and “Jungle Tales of Tarzan,” “are derivative works based on original works for which ERB held the copyrights, and … in such circumstances the copyright proprietor has the right to 'direct and supervise' the work of the commissioned party, sufficient to render it a work for hire.”

The Second Circuit further held that there was no statute of limitations bar to ERB's claim of ownership of the copyrights. Rather than accruing when competing copyright registration forms were filed for the disputed works in the 1970s, the appeals court emphasized that the 3-year statute of limitations under the U.S. Copyright Act accrued in 1999, when Hogarth's heirs asserted the copyrights in a letter to the Walt Disney over the release of a Tarzan movie.

The U.S. Court of Appeals for the Second Circuit decided that illustrations and introductions for two Tarzan books made by artist Burne Hogarth at the “instance and expense” of the estate of Tarzan creator Edgar Rice Burroughs (ERB) were works for hire. The Estate of Hogarth v. Edgar Rice Burroughs Inc. (ERB), 02-7312. Thus, Burroughs' estate retained the original and renewal copyrights in the books.

Affirming a district court ruling in favor of ERB, the appeals court noted that the two books, “Tarzan of the Apes” and “Jungle Tales of Tarzan,” “are derivative works based on original works for which ERB held the copyrights, and … in such circumstances the copyright proprietor has the right to 'direct and supervise' the work of the commissioned party, sufficient to render it a work for hire.”

The Second Circuit further held that there was no statute of limitations bar to ERB's claim of ownership of the copyrights. Rather than accruing when competing copyright registration forms were filed for the disputed works in the 1970s, the appeals court emphasized that the 3-year statute of limitations under the U.S. Copyright Act accrued in 1999, when Hogarth's heirs asserted the copyrights in a letter to the Walt Disney over the release of a Tarzan movie.