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In 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.
In the end, a federal appeals court didn’t find the case of Sherlock Holmes’ copyright status as mysterious, or as complex, as the Arthur Conan Doyle estate hoped, and today upheld that the bulk of the stories have lapsed into the public domain in the United States.
As Hollywood Esq. reports, the Seventh Circuit Court of Appeals didn’t buy the Doyle estate’s novel claim that Holmes is a “complex” character who was effectively incomplete until the author’s final story was published in the United States, leaving the entire body of work protected by copyright.
Although 50 Sherlock Holmes stories were released before Jan. 1, 1923, Doyle’s heirs have long insisted that publishers, television networks and film studios pay a licensing fee to use the characters and story elements. Many, including Warner Bros. and CBS, complied, but Sherlock Holmes expert Leslie Klinger refused to fork over $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.
“I think it’s very interesting that you bring up Shia because I just brought him up to Mike [Carey] the other day. I was proposing that we introduce a character based on him, because he does crystallize a lot of what we talk about. We’ve had a lot of discussion about whether copyright is a good thing or a horrible thing. What would happen if Superman was copyright-free? And people could add onto his story? Maybe we would end up with incredibly powerful stories that add a whole dimension of life to our existence because they would be able to build in a way that they can’t build otherwise. I don’t know. On the other hand, I want to get paid for what I do. […] I think we should write to Shia and his people for permission to use him and his likeness in our story. If they said ‘No,’ it would bring up a lot of interesting issues. Wouldn’t it?”
– The Unwritten co-creator Peter Gross, commenting on Shia LaBeouf, the public domain and storytelling, in an interview with Comic Book Resources
Legal | As the dust begins to settle on the ruling last month by a federal judge that Arthur Conan Doyle’s first 50 Sherlock Holmes stories have lapsed into the public domain in the United States, out march the analyses pointing out the buts. Chief among them, of course, is the possibility of appeal by the Conan Doyle estate, which contends the characters were effectively incomplete until the author’s final story was published in the United States (the 10 stories published after Jan. 1, 1923, remain under copyright in this country until 2022).
However, Publishers Weekly notes that because U.S. District Judge Ruben Castillo didn’t rule directly on that “novel” argument, the estate may be satisfied with the ambiguity of the decision, given that uncertain creators still may seek to license the characters to steer clear of any trouble. Estate lawyer Benjamin Allison also insists that the Sherlock Holmes trademarks remain unaffected, an assertion that puzzles author and scholar Leslie Klinger, who brought the lawsuit. “There is a very good reason why the Estate did not assert trademark protection: The Estate does not own any trademarks,” he told PW. “They have applied for them, and there will be substantial opposition.” There’s more at NPR, The Independent and The Atlantic. [Publishers Weekly]
Legal | In a decision that will undoubtedly usher in more Holmes and Watson novels, comic books, movies and television, a federal judge has issued a declarative judgment that the elements included in the 50 Sherlock Holmes stories published by Arthur Conan Doyle before Jan. 1, 1923 are in the public domain in the United States. That means creators are free to use the characters and elements from those stories (but not from the 10 published after 1923) without paying a licensing fee to the protective Arthur Conan Doyle Estate Ltd.
The ruling came as a result of a lawsuit filed early this year by Leslie Klinger, who served as an adviser on director Guy Ritchie’s two Sherlock Holmes films and with Laurie R. King edited In the Company of Sherlock Holmes, a collection of new stories written by different authors. Although Klinger and King had paid a $5,000 licensing fee for a previous Holmes-inspired collection, their publisher received a letter from the Conan Doyle estate demanding another fee; in response, Klinger sued. [The New York Times]
I have to admit, I was surprised to learn that Rob Liefeld’s relaunched Extreme Studios line had received attention on the online news magazine Slate, and reading the article itself, I realized why: It presumes Liefeld has done something he actually hasn’t. Writing about the transformation of Prophet, Glory and Bloodstrike at the hands of Brandon Graham, Joe Keatinge and Ross Campbell et al., David Weigel says that Liefeld “open-sourced” the characters, noting that “every copyright holder should be this generous, and this clever.”
Of course, this isn’t what happened; Liefeld still owns the characters, and Graham, Keatinge, Campbell and everyone else is working for him in much the same way other creators have worked for Todd McFarlane on Spawn, Marc Silvestri on his various Top Cow characters, or even Marvel and DC for decades now. It’s not really “open source” comics at all, because there’s still an “official” centralized canon version of the characters, and the material isn’t available for free for all to use as they wish. But reading the misconception made me wonder: What if Liefeld had open-sourced the characters?