Suing the Conan Doyle Estate
On Valentine’s Day 2013, I made a big commitment: I filed an action in federal court in the Northern District of Illinois against the Arthur Conan Doyle Estate. The Estate has for some time been insisting that creators who want to use the characters of Sherlock Holmes and Dr. Watson in their new creation pay the Estate not insubstantial amounts for “permission” to do so. I believe that this violates U.S. copyright laws. Although 10 of the Sherlock Holmes stories written by Conan Doyle remain protected by copyright for 95 years after publication date, the last expiring in 2022, 50 of the stories are in the public domain. Because the essential characteristics of Holmes and Watson are set forth in detail in those public domain stories, I believe that anyone can freely use the characters as they see fit. In particular, the Estate is trying to stop publication of a new anthology created by Laurie R. King and me, tentatively called “In the Company of Sherlock Holmes,” a second collection of stories inspired by the Sherlock Holmes Canon by an amazing group of writers.
For a good deal more about this subject, including copies of the Court filings, please check the website at www.free-sherlock.com.
[…] that were first published before 1923 and are now out of copyright in the United States. Editors Leslie S. Klinger and Laurie R. King (the author of the Mary Russell series of Holmes Canon novels) have refused to […]
Dream Under Lock and Key
by Paul Rapp on September 4, 2013
Last time, we were talking about the Robin Thicke-Marvin Gaye’s children debacle, and I mentioned that it was disturbing to see a dead creator’s kids wielding a big stick and abusing intellectual property laws in pursuit of the almighty dollar. Then last week, on the 50th anniversary of the March on Washington and Dr. Martin Luther King’s “I Have A Dream” speech, we were reminded of some of the worst abusers of all: Martin Luther King’s kids. They’ve got that speech locked down tight.
A big part of the problem here is that copyrights just last too long. When the first US copyright laws were passed in the 1790s, the term of protection was 14 years. Then a 14-year extension was tacked on. In the early 1900s it was doubled, to 28 years plus a 28-year extension. Then in the 1970s, it got blown up to the life of the author plus 50 years, or, in the case of a corporate creator, 75 years. Then in the 1990s, at the behest of Disneycorp (whose copyright to the first Mickey Mouse cartoon “Steamboat Willie” was about the expire), Congress passed the Sonny Bono Copyright Term Extension Act and added another 20 years to everybody’s copyrights.
Now, the Constitution says that Congress may pass copyright laws that provide creators protection “for limited times.” The Constitution also says that the purpose of copyright is for the betterment of society. The idea is that copyright is supposed to create a financial incentive for creators to create. Fourteen years was good enough for a while. But now . . . is life plus 70 years a “limited time?” Does life plus 70 create a significantly more powerful incentive than, say, 28 years? Will creators stop creating if we shorten copyright? And most important, how is society better off with laws that allow copyrights to continue for another two generations after the creator croaks? Post-mortem copyrights too often feature greedy kids and estate fiduciaries who push copyright maximalism to the limit and seal off from the public and hold hostage the dead creators’ legacies.
Like the “I Have A Dream” speech. Kings’ kids have notoriously kept it from the public. It’s being administered by EMI publishing. If you wanna reproduce or publish it, you gotta pay. Newspapers, filmmakers and historians have been sued for reprinting it or sticking it in a documentary. On the 50th anniversary last week, you didn’t see it replayed on TV. You didn’t read it in any newspapers. You can see it, however, in car and cellphone commercials. And you can buy a DVD of it (for private viewing only) for $20 from the King Foundation.
What’s wrong with this picture? Everything. To be fair to the kids, they are following Dad’s example. Prior to his assassination, MLK went after companies that put out LP records containing the speech. After his assassination, his estate (his kids) have been ruthless about “unlicensed” reproductions of the speech, and charge top dollar to anyone who wants to use it. They charged the nonprofit foundation that put together the MLK Memorial on the Plaza almost $800,000 to use the speech and MLK’s likeness. Think about that.
This is a speech that changed the world, one of the most important speeches in history. It doesn’t belong to a cabal of profiteers who pimp it out to the highest bidder. It belongs to us. It belongs to the world. But we’ve got this pesky little copyright law thing. As a literary work and as a performance, it falls under copyright’s purview. And there’s no “great speech” exception. Maybe there should be. On second thought, absolutely there should be.
Beyond that, there’s fair use. In a sharp Washington Post op-ed last week, attorney Josh Schiller made the case that the reproduction of the speech in 2013 would generally be a fair use and not an infringement of anybody’s rights. And I think he’s right. Broadly speaking, fair use comes into play when the use of a copyright-protected work benefits society more than upholding the copyright would. Ya think? More narrowly, fair use protects news reporting, commentary and educational uses. Recent court cases involving the likes of 2 Live Crew, Jeff Koons, South Park, and Richard Prince have stressed that fair use can be found when the secondary use is transformational in context, purpose, and meaning, or if it is aimed at a different audience or exudes a different aesthetic than the original.
I think the republication of great historic speeches qualifies, almost by definition. The listener/viewer experiences the speech through the prism of time and observes the changes that the speech may have brought about and the universal truths that have stood the test of time. That’s transformative, and it’s precisely what would have happened had the media sucked it up and ran with the speech last week. It’s time for the “I Have A Dream” speech to be free.
Paul Rapp is an ornery intellectual-property lawyer who lives and works in the wilds of Berkshire County and who enthusiastically applauds the end of summer.
I think that I can agree with just about all of the comments by Paul Rapp, Esq. but there remain questions in my mind that perhaps he has also considered. Unfortunately, my questions will take a little elaboration but essentially, they arise from this: Are there not rights to the character of Sherlock Homes and perhaps others in the stories, separate and apart from copyrights and if so, don’t those rights include giving the owners thereof control over the commercial use of the character? It is my understanding that such rights have been likened to trademark rights which can arise under common law without the need to register the trademark. The internet is full of reports claiming that as a result of the recent law suit, Klinger v Estate of Arthur Conan Doyle, Ltd., Sherlock Holmes is now in the Public Domain, implying that his name can now be used without permission from the Estate. Although I see the clear distinction between copyright law and trademark law, the recent case seems to arrive at a decision based solely on copyright law and does not even caution about any other rights that may be in force regarding the Sherlock Holmes name. I thought that the case of Warner Brothers, et al v-Columbia Broadcasting System.et al, (including Dashiell Hammett,) stood for the proposition that an author’s right to his characters is an issue separate and apart from any copyright considerations. In that case, an author, Dashiel Hammett, transferred his copyrights to his book, The Maltese Falcon, and the court held that the transfer did not include the rights to the characters in the book which were retained as a matter of law by the author.102 F Sup.2nd, 141( 1951) Affirmed 216,F2nd,945(1954). Oddly, were such not the case, then we would have a rather different history to this issue because it so happens that Arthur Conan Doyle sold the copyrights to his very first Sherlock Homes book, A Study In Scarlet, published in 1887. If that sale of his copyright was to have included his rights to his Sherlock Holmes character he could not have written more stories about him. Of course, such was not the case and Sir Arthur went on to write and publish 59 other Sherlock Holmes stories over the next 40 years.
It is obvious that one may copy, word for word, any book not protected by copyright but the characters in the book, being still the property of the author, cannot be used without his permission. In order for such characters to fall into the Public Domain, I believe that it must be shown that they have been abandoned by the owner, the “use it or lose it” doctrine. Yes, the heirs to the character rights may be exploit them vigorously, even ruthlessly, but they also have an interest in protecting the character so that it is not used in a way inconsistent with its original purpose.
Interestingly, Attorney Rapp mentions the Walt Disney character Steamboat Willie. That character, as well as Mickey Mouse and other Disney characters have appeared in many books with respect to which the copyrights have either expired or will eventually. At such time, will it to be held that those characters pass into the Public Domain thereby allowing all and sundry the right to use them for commercial purposes.?
When all of these questions are considered, it becomes apparent that while the Klinger court resolved the case along strict copyright lines, it still leaves unanswered the question: how does one permit a protected character, such as Sherlock Holmes, to be used in the context of new stories that necessarily exploit the commercial value of the character?. Names cannot be copyrighted but if the character has the protection of a trademark, how can a court resolve the matter properly and fairly?.
Without proper protection, literary characters can suffer distortion, sometimes beyond recognition.
In the current T.V series, “Elementary”, Sherlock Holmes is portrayed as a modern person, engaged n exploits set mostly in America and has as his assistant not John Watson, M.D. but Joan Watson, M.D., played by an actress of Oriental descent. I do not know whether or not the T.V. series was produced with permission of the Estate of Arthur Conan Doyle,, Ltd. but I mention it only to show that characters can lose their initial identity, with or without permission. I do not believe that Sherlock Holmes is now in the Public Domain, all hoopla on the internet notwithstanding.
[…] has been borne out in court docket. In a earlier lawsuit brought in opposition to the estate by author and editor Leslie Klinger in 2013, the courtroom ruled that the people must be deemed in two different pieces, the pre-1923 […]