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Tuesday, August 19, 2014

Sherlock Holmes Copyright

The latest Sherlock Holmes Case is a trial known as Klinger v. Conan Doyle Estate, Ltd. An author who used the character of Sherlock Holmes in a stage play had been sued by the Estate of Conan Doyle. The trial court ruled that the characters and plots of the Holmes “canon” were in the public domain; all that remained under copyright were “increments of expression” from the last ten stories published after 1923. This was an important decision for dramatists who can find themselves on both sides of this issue, adapting someone’s work while having one’s own work adapted by another author.
Of course, this also put severe inhibitions on the Estate’s ability to collect license fees from adaptations of the characters and plots of Sir Conan Doyle. To some, an appeal from the Estate seemed inevitable.
Since then, two related decisions have come from the appeals court, both authored by Judge Richard Posner. Judge Posner is one of the few judges who also serves as a public intellectual in the tradition of an Oliver Wendell Holmes, Jr. (d. 1935) and Learned Hand (d. 1961). Among Posner’s many publications is the 2003 masterpiece, The Economic Structure of Intellectual Property Law.
On June 16, 2014, Judge Posner denied the Estate’s appeal. The judge rejected the Estate’s argument that “copyright on a ‘complex’ character in a story, such as Sherlock Holmes or Dr. Watson, whose full complexity is not revealed until a later story, remains under copyright until the later story falls into the public domain.” The attorney for the Estate specifically attempted to distinguish between “flat” and “round” fictional characters, himself dramatizing the concept of “round” characters “by describing large circles with his arms.”
Not surprisingly, waiving around one’s arms does not help an insufficient legal argument. In fact, Posner concluded his description of the Estate’s argument thusly: “What this has to do with copyright law eludes us.” Consequently, the decision as described in “The Fake Person In Your Play” is affirmed.
On August 4, 2014, Judge Posner issued a sequel to the June opinion, this time considering Klinger’s request for attorneys’ fees incurred upon him by the Estate’s appeal (i.e., excluding attorney fees from the trial court). Posner’s decision? Granted! Under the authority of Section 505 of the Copyright Act, Judge Posner awarded the prevailing party the full amount of $30,679.93.
The court explained that attorney’s fees can be awarded, as in this case, “in order to ensure that an infringement defendant does not abandon a meritorious defense in situations in which ‘the costs of vindication exceed the private benefit to the party' . . . For without the prospect of such an award, [an infringement defendant] might be forced into a nuisance settlement or deterred altogether from exercising [its] rights.”
Showing more than a little disdain for the Estate, Judge Posner stated that Klinger had laudably acted as “a private general attorney, combating a disreputable business practice--a form of extortion--and he is seeking by the present motion not to obtain a reward but merely to avoid a loss. He has performed a public service.”
Consequently, Judge Posner’s latest decisions have not only confirmed and clarified what may be adapted without incurring a license fee. They have also praised an author for standing up to a bully. 

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