A US Federal judge has ruled that iconic literary character Sherlock Holmes and the most familiar elements of his stories are in the public domain. But what’s as important is that in a strongly worded opinion the court criticized the Arthur Conan Doyle estate for its troll-like practices.
It’s the third time an American judge has found in favor of the case brought by Holmes scholar Leslie Klinger in 2013. This time however, he was also awarded nearly $70K in legal fees.
The Conan Doyle estate has maintained that because of that , people who create any stories featuring the character must pay a licensing fee, based on the copyright of the last stories. But it’s a copyright, not a trademark – meaning that the copyright of the initial characters should be established by the date of their FIRST publication not their last. Only the newer elements – characters and certain plot devices perhaps that appear only in the LAST stories shoud get the protection unitl 2023.
Klinger coedited a pending anthology of new Holmes stories with Laurie R. King. The anthology, coming from Pegasus, collects new stories inspired by (and including) Sherlock Holmes from writers like Michael Connelly, Harlan Ellison and Jeffery Deaver among others. They contain no elements or characters from the last ten stories. The Conan Doyle estate contacted publisher Pegasus and stated that if it weren’t paid a licensing fee, it would take steps to block the book’s distribution. Here is an excerpt from their cease and desist letter:
“If you proceed … to bring out [the book] unlicensed, do not expect to see it offered for sale by Amazon, Barnes & Noble, and similar retailers. We work with these compan[ies] routinely to weed out unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate to do so with your book as well.”
Klinger decided to go on the offensive and bring a declaratory judgment action against the estate, arguing that Sherlock Holmes and the other familiar elements of his stories — trusty sidekick Dr. Watson, arch-nemesis Dr. Moriarty and the sleuth’s famous address at 221B Baker Street — should all be free to use.
Klinger has been on a roll. In December 2013, U.S. District Judge Ruben Castillo (Chief Judge of The Northern District Court of Illinois) found in favor of Klinger. Then, in June 2014, Judge Richard Posner (of the 7th Circuit Court of Appeals, covering Illinois, indiana and Wisconsin) sided with Klinger in the Estate’s appeal of Castillo’s ruling.
And now, Posner has issued another opinion awarding Klinger more than $69,000 in legal fees while sharply criticizing the business practices of the Conan Doyle estate, calling them “disreputable.”
“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 … 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.”
My battles with copyright trolls are well-known ( at least in my close circle of friendsand clients). I am the legal advisor to the site ExtortionLetterInfo.com (ELI) which chronicles copyright trolling behavior and offers a vibrant discussion forum where troll victims can find solace and solutions. ELI and I have often been vilified in public and in private by our adversaries for using the word “extortion” to describe trolling tactics. To see the word used by a Federal Appellate Judge in a published opinion warms my lawyer’s heart and makes me feel vindicated.
Trolls suffered another defeat last month when Federal Judge Thomas Rice ruled that high statutory damages in cases involving minimal infringement would amount to “excessive fines” prohibited by the 8th Amendment to the Constitution. In that case, film copyright owners brought a massive number of suits against folks who downloaded their films via BitTorrent. Many downloaders did not answer and the plaintiffs entered default judgments against them. in deciding the damages to award to the plaintiffs, Judge Rice rejected their request for $30K in damages for each defaulting defendant and $23K in legal fees in total. Instead, Judge Rice awarded $750 in damages (the statutory minimum) and only $2,500 in legal fees stating taht these numbers were more proportional to the wrong done by the defaulters. This is an argument that ELI and I and other similar sites like FightCopyrightTrolls.com and DieTrollDie.com have been making for years. To see this recognized in a Federal opinion is also a huge victory. It’s an early Christmas for troll-fighters!
I will certainly be citing and referring to these two strong opinions in my future troll defense cases. As for Holmes, Watson and Baker Street, they’re now free for the world to use.