
In 'Sherlock Holmes' Rights Dispute, Conan Doyle Estate Slammed Again - nkurz
http://www.hollywoodreporter.com/thr-esq/sherlock-holmes-rights-dispute-conan-723114
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nkurz
The following quoted paragraph may illustrate the degree to which the court
sided with Klinger and against the Conan Doyle Estate:
[http://media.ca7.uscourts.gov/cgi-
bin/rssExec.pl?Submit=Disp...](http://media.ca7.uscourts.gov/cgi-
bin/rssExec.pl?Submit=Display&Path=Y2014/D08-04/C:14-1128:J:Posner:aut:T:op:N:1392405:S:0)

"The Doyle estate’s business strategy is plain: charge a modest license fee
for which there is no legal basis, in the hope that the “rational” writer or
publisher asked for the fee will pay it rather than incur a greater cost, in
legal expenses, in challenging the legality of the demand. The strategy had
worked with Random House; Pegasus was ready to knuckle under; only Klinger (so
far as we know) resisted. In effect he was a private attorney general,
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—and with substantial risk to himself,
for had he lost he would have been out of pocket for the $69,803.37 in fees
and costs incurred at the trial and appellate levels ($30,679.93 +
$39,123.44). The willingness of someone in Klinger’s position to sue rather
than pay Doyle’s estate a modest license fee is important because it injects
risk into the estate’s business model. As a result of losing the suit, the
estate has lost its claim to own copyrights in characters in the Sherlock
Holmes stories published by Arthur Conan Doyle before 1923. For exposing the
estate’s unlawful business strategy, Klinger deserves a reward but asks only
to break even."

Note that the above is the official opinion of the court, and not just that of
Klinger and his attorney. And although only citing it as a quoted example,
Posner makes it clear that he feels Warner Brothers is using the same strategy
with "Happy Birthday":

"Depoorter and Walker (id. at 345 n. 172) give the example of the Summy-
Brichard Company, a subsidiary of Warner Music Group, which “receives
approximately $2 million per year in royalty payments for licenses to the song
‘Happy Birthday to You,’ despite the fact that the song is most likely in the
public domain,” as argued in Robert Brauneis, “Copyright and the World’s Most
Popular Song,” 56 J. Copyright Society U.S.A. 335, 338–40 (2009.)

~~~
HillRat
My God, I love Posner's opinions, even a trivial one like this. You have to
appreciate the part where he calls out the estate as having "enlisted [Amazon
and other booksellers] in a boycott of a competitor of the state, and boycotts
of competitors violate the anti-trust laws. ... It's time the estate, _in its
own self-interest_ , changed its business model."

Ouch.

~~~
dredmorbius
The point is that this _isn 't_ a trivial decision. Thought it's only a very
small slap on the flagrant abuses and extensions of copyright over the past
century and more.

~~~
HillRat
Trivial only in the sense that there was no question Klinger had the right to
recover under 17 USC§505; the decision on the case itself was obviously more
important.

Even then, though, it was obvious the estate had no case in regards to the
out-of-copyright work, and their argument was laughably specious. If their
theory had won out, judges would be called upon to do double duty as literary
critics, which no sane jurist would go anywhere near. (When a judge calls your
appeal "bordering on quixotic," you aren't facing a sympathetic bench.)

It is important to note that the lower court did find that the use of elements
from in-copyright stories (such as Watson's athletic background, or Holmes'
retirement from detective work) would constitute infringement, and that such
elements were incremental expressions that were protectable. My expectation is
that, until the entire canon is out of copyright, publishers will continue to
pay the estate rather than have to run the risk of an author illegally if
inadvertently importing still-copyrighted aspects into a story.

------
peterclary
For anyone interested in the reasoning behind the creation of copyright, and
how the various interests are balanced out, these two speeches by Macaulay
should be of interest. The interests and rights of legatees are specifically
discussed.

[http://www.gutenberg.org/files/2170/2170-h/2170-h.htm#link2H...](http://www.gutenberg.org/files/2170/2170-h/2170-h.htm#link2H_4_0018)
[http://www.gutenberg.org/files/2170/2170-h/2170-h.htm#link2H...](http://www.gutenberg.org/files/2170/2170-h/2170-h.htm#link2H_4_0019)

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ollysb
I can't help but feel that it would be fair for copyright to stay with an
author until they die.

~~~
RexRollman
That's how I feel about it too. When the author dies, so should the copyright.
There is no valid reason for copyrights to last as long as they do; corporate
greed aside.

~~~
mikeash
I think a fixed, _short_ term might be better.

Considering two extreme cases:

Author A writes something incredibly popular and dies the moment he wrote the
last word. His children end up in the poor house because they don't get any
royalties from sales.

Author B writes something incredibly popular at the age of 15 and is still
living large off his royalties at the ripe old age of 100.

If you just set it to, say, 20 years and it's done (or IMO better would be an
exponentially increasing fee for renewal, $1 for the first year, $2 for the
second, $4 for the third, etc.) then it seems to be more predictable and
cleaner.

~~~
tzs
20 years would be culturally terrible. That would make it so just around the
time your kids are old enough for you to introduce them to the great comics,
cartoons, movies, music, and books of your childhood it would enter the public
domain and become widely used in advertising and low budget productions. You
are not going to be able to share the magic of, say, Calvin & Hobbes, with
your kids if your kids have already been saturated by those characters as TV
pitchmen for toys and junk food.

~~~
eikenberry
I think you have it exactly backwards. A reasonable length copyright (like
10-20 years) would be awesome for culture. You'd see loads more great new
comics, cartoons, movies, music books all remixing, reworking and drawing
inspiration from an renewed and thriving public domain.

Advertisers and branding wouldn't find much use for them because they were
public domain. They gain value from these things by limiting the use through
exclusive deals enabled by copyright.

~~~
tzs
> Advertisers and branding wouldn't find much use for them because they were
> public domain. They gain value from these things by limiting the use through
> exclusive deals enabled by copyright

That's one way advertisers can gain value from using a character. Exclusivity
strengthens the association between the character and the product being
advertised. Without exclusivity, many advertising characters probably would
indeed be of little value and advertisers would probably not use them. I
think, though, that this would mostly apply to characters that were created
for advertising, or that were outside characters that were not very
significant to the public.

If the Michelin Man were used to pitch donuts, for example, I'd find it weird,
because I only associate the Michelin Man with Michelin tires.

However, for characters that had significant public interest before they were
used in advertising, I don't think exclusivity is very important. For
instance, Michael Phelps (yes, I know he is a real person, not a character,
but that doesn't change the point) has done ads for Subway Sandwiches and for
Speedo, and I don't think either diminishes the other.

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RexRollman
I've been following this case for a while and I love this, especially the part
where they have to pay the plaintiff's legal fees. The Doyle Estate fabricated
a line of reasoning that is clearly not part of copyright law.

