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A Case of Suspicious Copyright Licence Fees for the Conan Doyle Estate

Monday, 22 September 2014

A US federal court recently ordered the Arthur Conan Doyle estate to pay legal costs ($30,679.93) to a claimant who mounted a successful copyright challenge against the estate.

Leslie S. Klinger, a co-editor of a forthcoming anthology of new stories about Sherlock Holmes and Dr Watson, brought the action after being informed by the estate that his publisher would have to pay a licence fee in order to publish the new stories.

Are Sherlock Holmes and Dr Watson In the Public Domain?

Although the estate had previously obtained a $5,000 fee from the publisher of an earlier Klinger collection, Klinger decided this time to bring a declaratory judgment action predicated on the fact that the copyright in Doyle’s works expired in 1923 and that the fictional works were now in the public domain.

The representatives of the Doyle estate had argued that because there exists 10 later stories published by Doyle (between 1923 and his death in 1930) which are still under copyright then any subsequent depictions of the characters entail breaches of the later copyrights.

The argument was based on the later stories entailing a more complete “rounded” characterisation – in particular that Holmes was only a complete character when envisaged with the later stories’ additional complexities – which Klinger et al necessarily must have based any new material upon.

Dismissing the estate’s argument as “quixotic”, Judge Richard Posner found for the claimant, declaring (and affirming an earlier ruling) that Sherlock Holmes and Dr Watson are in the public domain, because the majority of novels written of the characters no longer remain under copyright. In June, the seventh US circuit court of appeals made clear that the character of Sherlock Holmes, and the 46 stories and 4 novels in which he appears, lie in the public domain.

Copyright Fees and Works in the Public Domain

Judge Posner went further when he made clear that the estate’s practice of demanding licence fees was “a disreputable business practice” and “a form of extortion” with “no legal basis”.

However, it was the following considerations which led the judge to awarding fees to Klinger: firstly the strength of the claimant’s case and secondly, the amount of relief or damage, the claimant obtained. Because of the frivolous nature of the defence, and therefore the comparative strength of Klinger’s case, and because of the lack of damages awarded, Judge Posner found a fee award “compelling”.

The case sets an (intentional) precedent in the US with the ruling referring to a levelling of the playing field between creators/artists and copyright holders. The latter are often all too quick to capitalise on the former’s willingness to pay licence fees insofar as the threat of litigation is averted.

The judgment made reference to the familiar song “Happy Birthday to You”, and where the Warner Music Group receives approximately $2m per year in use fees despite the fact that the song is “most likely in the public domain”.

For specialist advice regarding the protection of copyright licensing or any other intellectual property right licensing contact Peter Gourri today by email PGourri@rollingsons.co.uk or telephone 0207 611 4848.

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