Robot 6

Judge calls Sherlock Holmes licensing fee ‘a form of extortion’

sherlock holmesIn June, Judge Richard Posner gleefully dismantled the Arthur Conan Doyle estate’s case, and confirmed the bulk of the Sherlock Holmes stories belongs to the public domain. However, it turns out he wasn’t quite finished.

As Hollywood, Esq., reports, today the appellate court judge ordered the estate to pay more than $30,000 in legal fees to author Leslie Klinger — and he took the opportunity to get in a few more licks.

Although 50 Sherlock Holmes stories were released before Jan. 1, 1923, the Doyle estate long insisted that publishers, television networks and film studios pay a licensing fee to use the characters and story elements. Most, including Warner Bros., BBC and CBS, complied, but Klinger — an author, editor and Holmes scholar — refused to pay $5,000 while assembling In the Company of Sherlock Holmes, a collection of new stories written by different authors. When the Doyle estate sent a letter to the publisher threatening to block sales of the book through Amazon, Barnes & Noble and other retailers, Klinger sued.

The estate had argued that Holmes is such a “complex” character that he was effectively incomplete until the author’s final story was published in the United States, leaving the entire body of work protected by copyright. A federal judge didn’t buy that, and in December issued a declarative judgment that the elements included in the 50 Sherlock Holmes stories published before Jan. 1, 1923 are, indeed, in the public domain in the United States (leaving the 10 published after 1923 still protected). In June, the Seventh Circuit upheld that decision, with Posner leading the way.

In Monday’s decision, Posner praised Klinger while chastising the estate, going so far as to label its licensing fees as “a form of extortion.”

“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,” Posner wrote. “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. [...] 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.”

Posner also cautioned that the estate “was playing with fire” when it sought help from Amazon and other retailers to “enforce its nonexistent copyright claims,” suggesting that doing so was a violation of antitrust laws.

The copyright of Doyle’s Sherlock Holmes works expired in 1980 in the United Kingdom. His 10 post-1922 stories enter the public domain in 2022 in the United States.

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24 Comments

Great. 100 years seems like an excessively long time for copyright to last, IMO. It (copyright law) was only ever meant to last for the life of the creator, not to support 2 or 3 generations of the creator’s family. (Are you listening Siegel & Shuster estates?)

Aaron V Steimle

August 4, 2014 at 1:24 pm

I think the mistake made by Doyle’s estate here was ‘requiring’ Holmes adapters and expanders to pay licensing fees. Instead they might have worked better had they contacted these adapters and expanders, thanking them for carrying on the legacy begun by Doyle; these adapters and expanders could, in turn, show their appreciation to Doyle by paying the estate a ‘thank you’ donation… but only if they want to. If they choose not to donate anything, that’s their prerogative.

It’s the whole catching more flies with with honey than with vinegar thing.

I have mixed feelings about this. As a creator of characters in my novels I want to maintain ownership from beyond the grave. I really don’t want others writing my characters after my death.

Sorry. Little typo in my name. It should be Clopper.

Brian, why would you want to deny creators that have come along after you’ve passed the ability to continue to show love for your creation?

In creating a truly interesting and intriguing character that manages to stand the test of time, and provide entertainment for generations, one would assume that the creator would love for people to be so attached to what they’ve created that they want to continue on, and build upon that creator’s legacy, rather than have the creation fade into obscurity.

I’m not trying to start a debate, I’m merely curious why you feel that way.

@Brian Clopper – just curious, why wouldn’t you want someone writing your characters after you’ve been dead for XX number of years? It’s not like you can receive a monetary amount after your passing. I’m of the mindset that a creator’s inheritors should seek to make money their own way, rather than ride the coat-tails of their parents; I do believe that Kirby’s heirs have not right to the copyright because they didn’t create the characters, their father did – if he was alive he’d have a right.

I feel the same way as Brian.

@Brian: Copyright is a temporary monopoly granted to a creator to incentivize creation.

In what conceivable way does granting a monopoly to a dead person incentivize creation?

It doesn’t, and it can’t, because dead people can’t create things.

@Carl: I agree to some extent, but copyright expiring at a creator’s death effectively punishes creators who die young. Should Philip K Dick’s or Stieg Larsson’s heirs be denied profits from their works — profits that those creators would have left to them if they had lived longer?

I think copyright law should be shorter (120 years is ludicrous). But I’m wary of having it automatically expire on a creator’s death.

Any author or creator that was intelligent enough to set up an estate or company to protect their property rights should NEVER have those rights taken away because of an arbitrary expiration date set by copyright law. I hope the Arthur Conan Doyle estate keeps fighting for their rights.

Would any judge dismantle cases against Disney for Mickey Mouse as gleefully? I suspect not. Disney has much more pull…

http://www.washingtonpost.com/blogs/the-switch/wp/2013/10/25/15-years-ago-congress-kept-mickey-mouse-out-of-the-public-domain-will-they-do-it-again/

Copyright, like patent rights, is a temporary monopoly like Thad said. It incentivizes creators and inventors to innovate and contribute to the marketplace of ideas by giving them exclusive right to exploit their inventions. After that they become public domain and anyone can use them or incorporate them into newer inventions. If the logic being espoused by some were used, there would only be one brand of car, one brand of computer, and one fictional detective. As long as the monopoly exists, the actual work, as well as derivative or substantially similar works, cannot be distributed.

Without a health public domain, we all lose.

Any author or creator that was intelligent enough to set up a trademark and company, to protect their property rights while in life, and hence reaping MILLIONS, and becoming incredibly well off, while investing heavily in trust-funds and property for his children, ENSURING that they will ALL be well off, and their grand-children too, should ALWAYS have those rights taken away because of an expiration date set by copyright law.

I hope the Arthur Conan Doyle estate ( NONE of whom are actually DIRECT descendants of ACD) stops fighting for their non-existing rights.

Sorry, but I will never agree with a law that prevents the Arthur Conan Doyle Estate from growing its business and could force its employees out of work all because of a randomly picked date. NEVER. This is not a heath or technology issue, so stop making those asinine and illogical comparisons. Humanity will not stop progressing because someone holds a claim on fictional character. The only ones in favor of public domain for fictional work are uncreative hacks incapable of generating an original idea.

So were does this leave DC and Marvel comics? If Disney can keep Mickey out of Public Domain, can not Warner Bro.?

@Rubicon: How is making copyright last forever any less arbitrary than giving it a specific expiration date?

Copyright is a legal construct, not a naturally-occurring phenomenon.

@Victor: Mickey Mouse is a separate case, because — yes, thanks in large part to Disney lobbyists — the copyrights to the original Mickey Mouse cartoons have not expired.

@Stinger: The notion that derivative works of public-domain characters are the work of “uncreative hacks incapable of generating an original idea” is utterly absurd. Here is a short list of creative works based on public domain characters:

A good big chunk of Disney’s animated catalog (Snow White, Sleeping Beauty, Cinderella, Pinocchio, Jungle Book, Robin Hood, Mickey’s Christmas Carol, The Little Mermaid, Beauty and the Beast, Aladdin, Frozen, off the top of my head)

The Universal Monsters

Fables

Any number of Hellboy stories

Marvel’s Thor

BBC’s Sherlock

The League of Extraordinary Gentlemen

Sleepy Hollow

Clash of the Titans

O Brother, Where Art Thou?

Castlevania

The Twilight Zone episode that adapted An Occurrence at Owl Creek Bridge

Monty Python and the Holy Grail

A lot of episodes of Mystery Science Theater 3000 (notably Manos: Hands of Fate)

That’s, you know, to name just a few. Are you seriously suggesting that not a one of those things is a creative or original work just because it’s based on something from the public domain?

@Eric: It’s likely that Disney, Warner, et al are going to lobby Congress to extend copyright again. What happens from there, though, is harder to guess.

First of all, getting ANYTHING to pass the current Congress is a questionable proposition, and I expect that gridlock will continue through at least the next census.

And second, while the Supreme Court upheld the Copyright Act of 1994, the ruling also explicitly reaffirmed that, per the Constitution, copyright is temporary and must eventually expire. If Congress DOES keep extending copyright, at some point one of two things is going to have to happen: either Congress amend the Constitution to change the definition of copyright, or the Supreme Court rule on what exactly the constitutional limits of copyright are. I wouldn’t expect either one of those things to happen anytime soon.

Judge Posner is a U.S. Court of Appeals Judge, not a U.S. District Judge.

@Stinger and @Rubicon: The idea that all intellectual property belongs to a creator’s family (or a media corporation) in perpetuity overlooks the rights of the rest of humanity to use that IP at some point. Eventually, all data becomes the property of the human race. Or at least, it should. And we should want that, for the amount of knowledge that the human race can call its own to grow over time. If we are so mean-spirited that we never allow the rest of us to use that story, or character, UNTIL THE END OF TIME, then what’s the point?

Here’s where I am coming from. Let’s say my creations gain a large following and spawn an empire that allows me to grow my audience beyond a handful. Twenty years goes by and my IPs are well-cultivated and contining to yield profits. I pass and the business I set up to manage the properies continues to get them in the public eye and hires creators to write more stories. I would want the profits to go to my family because they were with me when I spent a sizeable amount of time writing and creating over doing family things. It seems only fair that my family still have a stake in the properties I crafted because they experienced my sacrifice to put my work out there.

Creating a character is a deeply personal thing and the notion that a certain time frame passes and others can dig into your toys doesn’t sit well with me.

If I created a certain type of wine, I would expect it to stay in the family. After passing, I would expect the winery I built to still hold onto the recipe and process for creating that unique brand. I wouldn’t expect the way to make my wine would become available to others to use willy-nilly. I would want it controlled by those who had a stake in the business, my family. If they deem it okay to hire writers to continue my stories, I’m fine with that if it was part of my business plan.

@clopper
So should an architect’s family receive royalties for a building he drafted 100 years after it has been built? You get paid for the work you have done. My kids don’t get a royalty for every person I treat as an EMT. Why the “creative” types feel that they should be paid forever for work they did once, I just don’t get that one.

The architect argument doesn’t seem relevant. Of course when a building is built the architect is paid. Now if someone else takes the identical building design and hawks it as their own why should that be allowed? You don’t receive royalties on a house once it’s built.

As a teacher I don’t receive royalties for my lessons each year I present them either. It’s a service field. Creating a book character is more than a service.

Publishing a book or comic is different than designing a building. The property is continually being bought. Those who have a stake in the creative property should benefit from it.

In regards to cultivating a healthy public domain garden, I have always encouraged my students to write adventures of their own characters before they turn in a story about Pokemon or Spongebob. Their stories are far richer when they mine their own imagination than when they delve into established characters they didn’t have a hand in creating.

You argue against your own point. The whole point of public domain is to encourage people to create new things, mine their own imaginations. If your children and their children can just continue to exploit your creations they have no need to create anything new. If your work drops into the public domain, your future generations have to create their own work if they want a copyright to exploit.

@Ziggy: Indeed. I just can’t understand the cognitive dissonance it takes for someone to say “If you use characters from the public domain, you’re not being creative” while simultaneously defending an organization whose business strategy is licensing and lawsuits over a property created over a hundred years ago.

I notice nobody’s taken me up on my challenge to explain how my twentysomething examples of public domain-derived properties are not creative or original. Funny, that.

(For giggles, here are a few more: Fantasia, What’s Opera, Doc?, Usagi Yojimbo: Senso, The Witcher, and the Suikoden video game series. Again, I welcome a discussion on how not one of these works displays creativity because they all use public domain material. Any takers?)

@Thad Well said! I love the complete focus on “gettin’ paid” without any regard at all to adding to the sum total of humanity. The “me” generation is alive and well these days, eh? Sad news, folks: One day you will be dead and you will be unable to control anything, much less what happens to your stuff, whether that’s your comic book collection, your cocker spaniel, or your intellectual property. Anything you leave behind eventually belongs to humanity as a whole, even if you try to prevent it for a generation or three. You’re dead. Let it go.

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