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In June, the Seventh Circuit ruled on a case involving the copyrights of the estate of Arthur Conan Doyle, a/k/a the creator of Sherlock Holmes and Dr. Watson. Judge Posner ruled against the estate, and the Seventh Circuit recently issued a sequel opinion.
In what may be the next Sherlock Holmes series, let's take a closer look at Judge Posner's follow-up opinion: Sherlock Holmes and the Declaratory Judgment Attorney's Fees.
Arthur Conan Doyle introduced the world to Sherlock Holmes and Dr. Watson in 1887, and continued writing about our favorite British detectives until 1927. All works written prior to 1923 are in the public domain, leaving ten works protected by copyright.
Leslie Klinger, an editor, compiled and published a canon of Conan Doyle's works and paid the estate a license to do so. When working on a follow-up canon on the works of other authors writing about Conan Doyle's characters, the estate threatened to prevent distribution of the book if Klinger did not pay a license. Klinger sought declaratory relief (and started a blog called Free Sherlock!) stating that he could use material in the pre-1923 works because it was in the public domain.
Writing for the court, Judge Posner found for Klinger because he could find no "basis in statute or case law for extending a copyright beyond its expiration." Rather, he found that "only original elements added in the later stories remain protected." That is, if Conan Doyle revealed a character trait or storyline in post-1923 writings, those particular traits would be copyright protected -- but not the underlying characters of Sherlock Holmes and Dr. Watson.
Last Monday, Judge Posner wrote the sequel to his initial opinion. Here, Klinger sought attorney's fees, amounting to $30,679.93, for the costs associated with pursuing the appeal. Likening a declaratory judgment plaintiff to a copyright infringement defendant, Judge Posner found that Klinger was entitled to fees. In support of his finding, he noted the important policy considerations in "ensur[ing]that an infringement defendant does not abandon a meritorious defense in situations in which 'the cost of vindication exceeds the private benefit to the party.'" Any other outcome would result in "a Pyrrhic victory if ever there was one."
Judge Posner closed with a recommendation that the estate should consider changing its business model. That advice seems wise because Sherlock Holmes video games, television shows and movies seem far more lucrative.
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