Copyright

Sherlock Holmes' Latest Case Comes to an End

Its last bow.

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Sherlock Hemlock and the Case of the Image Appearing on His Magnifying Glass at the Wrong Angle
Western Publishing

It is legal to publish stories about Sherlock Holmes and Dr. Watson without the permission of their creator's estate, because those characters are in the public domain. That's what the Seventh Circuit ruled in June, and it's now clear that the judge's decision is going to stand: The U.S. Supreme Court has declined to hear an appeal filed by Sir Arthur Conan Doyle's heirs.

As I wrote when the Seventh Circuit ruling came down, this is

a welcome decision. The argument offered by Arthur Conan Doyle's estate rested on the fact that 10 Sherlock stories were published after 1923 and therefore have not yet entered the public domain. Because those stories introduced new elements to Holmes' and Watson's fictional lives, the estate's attorneys claimed that the characters were not fully created until after 1923 and therefore aren't in the public domain after all. At a time when copyright terms are constantly being extended into the future, the estate was effectively attempting to enact a stealth extension into the past.

It was an absurd argument, and Judge Richard Posner swatted it down gracefully.

Absurd though its argument was, the Doyle estate had been getting away for years with asking writers for fees they were not actually legally obliged to pay. Indeed, this case began with the Doyle estate telling Leslie Klinger that he and his publisher had to cough up $5,000 for the right to use Holmes and Watson in a book. Now the money will be flowing in the opposite direction: In August, Judge Posner ordered the estate to give Klinger $30,679.93—the amount he incurred in the circuit-court stage of the legal fight. Klinger is also asking to be compensated for the costs of an earlier stage of the battle, before a lower court; if that request is granted, Doyle's heirs will be on the hook for another $39,123.44.

I hope that happens. As Posner wrote in his August order,

Hey, it's a business model.
Arista

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 in-curred 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.

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  1. I OWNED THAT SESAME STREET BOOK!

    I AM ALSO SHOUTING BECAUSE I AM F*CKING OLD!

    1. Me too! It was a used book when I had it though, so I guess I’m not too old.

      1. “POLICE POLICE, lap83 done stole my Sesame Street books”

  2. did Vanneman pay or were the heirs laughing too hard?

  3. They settled for a cut of his profits: -27 cents

  4. For those who don’t know, Shakedown Street is a no kidding Grateful Dead disco record. Yeah, things got a little out of control in the 70s.

    1. C’mon, John, really? The title song is kind of funky, but nothing remotely like disco. The album also has Grateful Dead songs that became standards, like “Fire on the Mountain”, “Stagger Lee”, and “I Need a Miracle” (which became the refrain of people asking for free tickets in the parking lot). The album also has a very rockin’ version of the Young Rascals’ “Good Lovin” that became a radio hit, and I doubt that anyone could consider that tune anywhere on the same planet as disco.

      Little known fact: the album was produced by the Lowell George, lead singer/guitarist of Little Feat, who died not long after the album was released.

      1. +1 Rock and Roll Doctor.

      2. Shakedown Street is a total disco song. What makes disco if not the beat? If Shakedown Street is not a disco song neither is something Miss You or Got To Give It Up. And those two songs are definitely disco songs even though they were made by artists who not disco artists.

        1. Yeah, I’ve always thought it was pretty disco. The album version anyway. I still think it’s a good song.

    2. And produced by Lowell George, who provides the vocals on the alternate version of Good Lovin (which I love, but a lot of fans hate).

  5. The argument offered by Arthur Conan Doyle’s estate rested on the fact that 10 Sherlock stories were published after 1923 and therefore have not yet entered the public domain.

    Why would any of Arthur Conan Doyle’s stories become “public property” if they are supposed to be “real” property according to the IP-ers?

    You can hand down real property to your descendants and these to their descendants in perpetuity, so why would A.C. Doyle’s property be any different?

    Of course, the reason is because Intellectual Property is NOT property. The Arthur Conan Doyle’s estate did not own a single word written by Doyle ever. You can’t put a fence on an idea. Only through the force of the State were they able to collect ransoms and extortion money from hapless writers and publishers.

    Of course, you cannot write a Sherlock Holmes novel and say that YOU created the character because that would be fraud, but you can certainly benefit from the characters just like Mel Gibson benefited from playing Hamlet.

    1. Because IP is not property. Otherwise it would just be called “P”. Any honest person must admit that it is a purely invented thing, whether or not you think it is a good idea.

      1. All property is invented. It didn’t exist until people thought it up.

  6. Interestingly, Sherlock Holmes himself functioned as a sort of private Attorney General.

    By the way, did you ever notice how in the stories, anyone who has been to the US or Australia is always hiding a Dark Secret?

    1. And not only in Sherlock Holmes stories, but in Doyle’s other mystery stories too.

  7. While I think the language in Posner’s order is over the top, I do apploaud the win for IP sanity.

  8. I had that book when I was little. Even then I thought it was weird that the guy was named after poison.

    1. He has the poison, *and* he has the remedy.

    2. Maybe he is named for the tree, which is not poisonous.

  9. Any other fans here of the BBC Sherlock series? I just started season three on Blu-Ray. I might be in the minority, but I found the episode with Bilbo’s wedding to be one of my favorites.

    1. I love that show. And I liked that episode a lot too.

    2. I really like it. It sucks that we have to wait so long for the next season/series

  10. I have a friend who is Norman Rockwell’s grandson and he makes a pretty good living managing the rights to his paintings for the family trust or whatever it is.
    I try not to hold it against him too much.

  11. Poor A C Doyle will be rendered penniless by thieves and scavengers, now.

  12. Sherlock Hemlock and the Case of the Image Appearing on His Magnifying Glass at the Wrong Angle

    or “Why The Hell Are My Left And Right Hands Reversed And Where Is My Damn Fourth Finger?”

    1. Oh, you mean Sherlock Escher Hemlock?

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