Supreme Court Refuses To Hear Sherlock Holmes Case: Holmes Is Now (Mostly) Public Domain

from the the-case-of-the-missing-public-domain dept

This isn't a huge surprise, but the Supreme Court has declined to hear the case concerning whether or not Sherlock Holmes is in the public domain. As many news sites are reporting, this more or less means that the character of Sherlock Holmes is considered public domain. It's not quite that simple, of course. Technically, all but the last book of Sherlock Holmes works (covering a few stories) is in the public domain according to the 7th Circuit appeals court. That means the character attributes that are new in those last works are not in the public domain. Also, conceivably, a similar challenge in another circuit could lead to a different conclusion, which might lead the Supreme Court to eventually weigh in another time. But, for now, it's mostly safe to assume that the basic character is in the public domain.

So, now, who's going to create some awesome new Sherlock Holmes stories?

Filed Under: copyright, leslie klinger, public domain, sherlock holmes, supreme court
Companies: conan doyle estate

Why A 'Declaration of Digital Human Rights' Gets It Wrong

from the nobody-said-it-would-be-easy dept

Back in November 2013, the French think-tank Forum d’Avignon published a manifesto entitled, "Principles of a universal declaration for Internet users' and creators' rights in a digital era," which tried to define the concept of an individual's "digital cultural data." The same group has now put together what it rather grandly calls a "Preliminary Declaration of the Digital Human Rights". That might sound like a good idea, but as Techdirt has discussed before, thinking in terms of "rights" and "laws" isn't always the best way to proceed in these sort of areas.

That's certainly the view of a heavyweight collection of French civil society organizations, which have issued a statement about what they see as key problems with the declaration (via @maliciarogue.). First of all, they point out that the group behind the declaration is not entirely disinterested here:

It is worth noting that the Forum d’Avignon is a French think tank whose main goal is to deepen the links between culture and economy. We hereby denounce the Forum's use of digital privacy's debate to its own profit, that is in order to reinforce copyright.

One big problem is the absence of any appreciation of the importance of the public domain:

Article 5 of the Declaration poses that « any use of the data as a creative work » is subject to prior consent of the individual. Such a formulation completely ignores the fundamental role of the public domain as well as the exceptions and limitations to copyright, which are all essential in balancing and preserving the system.

The statement also points out that trying to apply copyright law to personal data is unsatisfactory, because it puts the onus on individuals to defend their privacy:

Similarly, the application of copyright law to personal data is a dangerous solution for it is based on the sole individual responsibility and control of the use of data which identify oneself. The French State Council and the National Digital Council rightly warned against such a conceptual framework as it could lead to greater discrimination and therefore inequalities in the protection of privacy. We are not all equal with the exploitation and protection of our data and it is essential that common rules exist.

The statement concludes:

We therefore emphasise that personal data is not a form of creative work and must not be considered as such. Equally, a form of creative work is not personal data and must not be considered as such.

The protection of personal data is a fundamental stake in the digital age. It needs to be balanced with freedom of expression and the right to information.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: copyright, culture, declaration of human rights, france, human rights, public domain
Companies: forum d'avignon

Harvard Law Review Claims Copyright Over Legal Citations; Now Challenged By Public Domain Effort

from the this-ought-to-be-interesting dept

If you're not a copyright geek, you might not be aware of the copyright saga revolving around the Harvard "Bluebook." The Bluebook is basically the standard for legal citations in the US. It's technically owned by an organization that is effectively made up of four top law schools. For a variety of reasons, the idea that citations can be covered by copyright is troubling to a lot of folks, but the Harvard Law Review, in particular, has stood by the copyright in The Bluebook (for which it makes a pretty penny each year). Last year, there was a fight over this, best summed up succinctly by Carl Malamud in this short BoingBoing post:

For five years, Professor Frank Bennett, a distinguished legal scholar at Nagoya University School of Law, has been trying to add Bluebook Support to Zotero, the open source citation tool used all over the world.

Professor Bennett asked Harvard Law Review for permission. They said no. He asked again. They said no again. He secured Larry Lessig as his lawyer. They said no to Lessig. I pitched in and got a bunch of angry letters from the most expensive law firm in Boston. Even a flaming headline in Boing Boing wasn't enough to get the Harvard Law Review off their $2 million/year revenue stream to permit a little bit of innovation.

Frank Bennett finally said the hell with it after asking nicely for 5 years, and has now released Bluebook Zotero. It's shameful that Bluebook, Inc. couldn't deal with this situation in a better way.

If you want to dig in, with even more details, you can look here, here or here, with that last one being the original letter that Malamud sent to Harvard, which we've also embedded below.

The story has now taken an interesting twist, as Malamud, with the help of NYU law professor Chris Sprigman, has now sent a new letter to Harvard, pointing out that the 10th edition of The Bluebook is actually in the public domain, seeing as someone forgot to renew the copyright. Now, the 10th edition is obviously way off from the current 19th edition... but since much of the 19th edition survives from the 10th edition, that would suggest that much of The Bluebook is also public domain.

First, our research has established that the copyright on the 10th edition of The Bluebook, published in 1958, was never renewed. As a consequence, the 10th edition is in the public domain. Public Resource will thus publish an electronic version of the 10th Edition.

Second, in view of the 10th edition’s public domain status, we have begun an inquiry into the copyright status of the current 19th edition. As Carl has noted in his previous correspondence with you, numerous courts have mandated use of The Bluebook. As a consequence, The Bluebook has been adopted as an edict of government and its contents are in the public domain. But even if we lay that point aside (which, of course, we would not), very little of the 19th edition can be construed as material protected by copyright. Many portions of the 19th edition are identical to or only trivially dissimilar from public domain material contained in the 10th edition. Other portions of the 19th edition are comprised either of material entirely outside the scope of copyright, or material which merges with the system of citation that The Bluebook represents. These portions of the 19th edition are likewise available for public use.

As such, Malamud's Public Resource is going to create an alternative to The Bluebook, called Baby Blue, which will make use of the public domain portions of the book.

In short, The Bluebook will soon face a public domain competitor. And when Baby Blue comes to market, The Harvard Law Review Association is likely to face questions regarding why the public – including pro se and indigent litigants – are obliged to pay for access to a resource that is indispensable to all those who seek justice from our courts. The Harvard Law Review Association is likely also to face questions regarding the financial transparency of the current structure.

That's the legal equivalent of a mic drop right there.

Meanwhile, as an aside, a few months ago, lawyer Cathy Gellis also pointed out that if legal citation formats are copyrightable, then it would appear that the 19th edition of The Bluebook infringes on her copyright, since she suggested a citation style for websites years earlier, which the latest edition of The Bluebook appears to have adopted.

For the Harvard Law Review to be able to claim infringement it would need to show that the claimed IP is unique to it. And it can’t, at least not for all citation forms. Take the system for citing blogs, for instance. The most recent edition of the Bluebook says that this would be the correct format to cite this blog post:

Cathy Gellis, The Bluebook Stole My IP, STATEMENTS OF INTEREST (June 4, 2014), http://www.cathygellis.com/soi/2014/06/the-bluebook-stole-my-ip.html.

See Rule 18.2 in the 19th Edition. However, the 18th Edition prescribed something completely different (see Rule 18.2.4):

Statements of Interest, http://www.cathygellis.com/soi/ (June 4, 2014).

Which is, of course, a completely useless citation format. It doesn’t indicate author, it doesn’t indicate post title, it doesn’t indicate URL (which one needs to be able to search the Internet Archive for when online materials disappear). It’s complete garbage.

But... going all the way back to 2007, Gellis had suggested citations that look a lot more like what's now in The Bluebook:

See the first comment appended to this 2007 post (Christine Hurt, Bluebook Pet Peeves, THE CONGLOMERATE (March 13, 2007), http://www.theconglomerate.org/2007/03/bluebook_pet_pe.html#c63110048):

1. Posted by Cathy on March 13, 2007 @ 9:22 | Permalink

It’s weird how the Bluebook form plays up datestamps and plays down author’s names. I’ve suggested that instead blogs should be cited just like articles are cited. So, for instance, instead of this:

Susan Crawford Blog, http://scrawford.blogware.com/blog/ (Apr. 27 2006 22:05 EDT).

which would completely ream someone like Howard Bashman, whose name is not part of his blog title or URL and therefore would never show up in the cite, it should be

Susan Crawford, Onward, SUSAN CRAWFORD BLOG, Apr. 27, 2006, http://scrawford.blogware.com/blog/_archives/2006/4/27/1917067.html.

I can think of few instances where that form wouldn’t work. Well, ok, I can think of one: linking to a subjectline-less post on a teenager’s MySpace page. For that, the original Bluebook form would probably be better. It’s just kind of sad, though, that the Bluebook is keying its recommendation to that particular form of electronic media and failing to recognize the tremendous scholarship that lies out there on proper blogs and allowing us to effectively capture a reference to it.

Gellis jokingly points out that if those citations are covered by copyright, then perhaps The Bluebook infringed her copyright, but she's granting a license for anyone to use it... except for the Harvard Law Review... unless, they let Carl Malamud and Frank Bennett do what they want to do. Seems like a good tradeoff.

Either way, it will be fascinating to see how Harvard Law Review responds. Here's a tip, though, if it's anything other than "sorry, we overreacted," it's probably the wrong response.

Filed Under: bluebook, carl malamud, cathy gellis, chris sprigman, copyright, harvard law review, legal citations, public domain, the bluebook
Companies: harvard, harvard law review association

Conan Doyle Estate Asks Supreme Court To Put Sherlock Holmes Back Under Copyright

from the the-case-of-the-missing-public-domain dept

For a while now, we've been following the lawsuit concerning whether or not Sherlock Holmes is in the public domain. Back in June the 7th Circuit appeals court ruled that Holmes was in the public domain, followed up by a more thorough slamming of the Sir Arthur Conan Doyle Estate in a follow-up ruling concerning rewarding attorneys' fees. We saw some reporters claim that the case was now "over," but that was clearly not true. The Estate had made it clear it intended to appeal, having already asked the Supreme Court to block the appeals court ruling from taking effect (a request that was quickly denied). But that was clearly the preamble to a request to the Supreme Court to hear the case.

That request has now come, with the Estate arguing that there are serious questions still in play. Specifically, the Doyle Estate raises three questions for a potential Supreme Court hearing. As a bit of background, the case was not directly started by the Estate, but rather author Leslie Klinger, who filed for declaratory judgment saying he wasn't infringing since the character was in the public domain. In the past, Klinger's publisher had felt pressured into taking out a license, and Klinger felt that this demand was unfair and unjust. The Estate tried to argue that even though all but one book of Holmes stories were published before 1923 (which puts them in the public domain), the fact that another book was published after 1923 with new facets to the character meant that the entirety of the character of Holmes (and Watson) were still covered by copyright. The argument was, more or less, that as long as the character is still "developing," and not complete, the copyright clock can be kept ticking. The courts completely rejected this argument and pointed out that the public domain is the public domain.

However, the Estate is making one last go of it, with a two-pronged attempt to get the Supreme Court to reconsider:

1. Whether it was reasonable to rule on the case prior to Klinger finishing his book. This is a bit of misdirection. The Estate argues that the case shouldn't have been decided until Klinger finished his book since you can't determine if something isn't infringing if it hasn't been produced yet. This question was easily dismissed by the courts because (1) the Estate had been agitating for a license already, and that had created publishing issues for Klinger and (2) the courts made it clear that they were just saying that the early works were in the public domain -- and if Klinger's eventual book infringed on anything from that final (still copyrighted) Holmes book, the Estate could bring a specific case on that issue.
2. The big question: whether or not a "dynamically developing character" can continue to extend the clock on copyright. Here, the Doyle Estate claims that there's a circuit split, in particular with a ruling from the 8th Circuit (which we covered here) concerning the Wizard of Oz (and people making t-shirts out of images from a movie poster that clearly was in the public domain). Admittedly, that was a terrible decision -- effectively allowing some reclamation of the public domain by copyright law. If the Supreme Court takes this case, hopefully it will be to just smack down that 8th Circuit decision and bring it into compliance with the 7th Circuit's point that things that were in the public domain stay in the public domain.

The Supreme Court is not always clear in indicating which cases it will take and which it will pass over, and I wouldn't recommend betting in favor of the Court taking this case. Chances are it will pass. However, if it does take on the case, hopefully it will only be to protect and preserve the public domain.

Filed Under: 7th circuit, 8th circuit, copyright, leslie klinger, public domain, sherlock holmes, supreme court, wizard of oz
Companies: conan doyle estate

Awesomeness: Millions Of Public Domain Images Being Put Online

from the go-use-them dept

Here's some nice news. Kalev Leetaru has been liberating a ton of public domain images from books and putting them all on Flickr. He's been going through Internet Archive scans of old, public domain books, isolating the images, and turning them into individual images. Because, while the books and images are all public domain, very few of the images have been separated from the books and released in a digital format.

To achieve his goal, Mr Leetaru wrote his own software to work around the way the books had originally been digitised.

The Internet Archive had used an optical character recognition (OCR) program to analyse each of its 600 million scanned pages in order to convert the image of each word into searchable text.

As part of the process, the software recognised which parts of a page were pictures in order to discard them.

Mr Leetaru's code used this information to go back to the original scans, extract the regions the OCR program had ignored, and then save each one as a separate file in the Jpeg picture format.

Already over 2.6 million images have been posted to Flickr in this manner -- all completely in the public domain. From a historical perspective, the images are fascinating -- and the fact that anyone can do anything with them, free of charge, is important culturally as well. Just scrolling through the images is amazing. Here are a few interesting ones that I spotted:



There seem to be lots of images of musical scores, sewing machines, individual portraits, building and machinery. Each Flickr page associated with the image gives information about the book, including the text before and after the image, which is pretty cool. The one (only slightly) annoying thing is that on the Flickr pages, rather than saying these are public domain images, it says that there are "no known copyright restrictions." While that's accurate, and a potentially reasonable hedge against some miraculous finding that says these images are covered by copyright, it's really too bad that it's so problematic to come out and say "this is in the public domain, do whatever the hell you want with it."

Filed Under: book scans, copyright, flickr, internet archive, kalev, leetaru, old books, public domain

How That Monkey Selfie Reveals The Dangerous Belief That Every Bit Of Culture Must Be 'Owned'

from the no-monkeying-around dept

As we wrote yesterday, the infamous monkey selfie has returned to the news, thanks mostly to Wikimedia's new transparency report, which discusses the supposed copyright claim over the following monkey selfie: Unfortunately, as we noted, the original story in The Telegraph claimed that Wikipedia "editors decided that the monkey itself actually owned the copyright." As we explained in great detail three years ago, this was false. The monkey doesn't hold the copyright: no one does. It's in the public domain. In fact, if the reporter had been careful, he would have noted that even Wikipedia properly notes that the image is in the public domain. It did not claim that the monkey owns the copyright.

However, since a major newspaper (falsely) wrote that Wikipedia had decided the monkey holds the copyright, the whole thing went viral all over again. All over Twitter I saw people claiming that the monkey held the copyright. Unfortunately, this is somewhat pernicious, starting with the Telegraph reporter, Matthew Sparkes, who made the false claim. As Sherwin Siy notes in a very good post, it's very troubling that people now come to automatically believe that someone has to hold the copyright on a photograph. That's just not true:

The claim isn’t that monkeys have IP rights—it’s that no one owns the copyright in the photo. A lot of people seem to take issue with this, insisting that, if the monkey doesn’t own the copyright, the photographer must—that someone has to own a copyright in the photo.

But that just isn’t true.

This is the definition of the public domain—things that are not protected by copyright. We’re used to thinking of the public domain as consisting of things that were in copyright and then aged out of it after a length of time, but that’s just a part of it. There’s also works created by the federal government, and things that simply can’t be protected—like ideas, methods of operation, or discoveries.

I think a big part of the problem here is that we've been trained incorrectly to believe that everything new must be covered by copyright. This is part of the most pernicious aspects of copyright maximalism today -- the idea that everything is covered by copyright. Only a few decades ago, nearly all created works were not covered by copyright and were public domain, free to be shared. It was only with the 1976 Copyright Act that the US switched from an "opt-in" policy to a "nearly everything is covered" policy, leading many people to (wrongly) believe that with any photo someone must hold the copyright.

That's a dangerous assumption for culture, highlighted by the fact that so many people default to insisting that someone must hold the copyright over this photo.

Meanwhile, for an even more amusing take on all of this, don't miss Sarah Jeong's defense of monkey copyrights satirical post:

It’s hard enough to eke out a living as an artist without the Copyright Office butting in and claiming it is literally impossible for you to own copyrights, just because you’re a monkey. What on earth is this “Copyright Office”, anyways? What right do they have to say whether a monkey’s work is worthy of copyright or not?

According to Slater’s own account, the Indonesian macaques were “already posing for the camera” when one of them started taking photos. Not all of them were good – as it turns out, some monkeys are much better photographers than other monkeys. The “monkey selfie” in question is a diamond in the mud: a truly remarkable portrait, perfectly focused and strategically positioned to capture a mischievous yet vulnerable smile. If that macaque had an Instagram account she’d have, like, a million followers.

But she doesn’t, and the sorry state of our copyright law – as interpreted by the Copyright Office and exploited by Wikipedia – is to blame. Due to the backwards treatment of animal creators everywhere, monkey art (and monkey photography in particular) continues to languish. How is an aspiring monkey photographer supposed to make it if she can’t stop the rampant internet piracy of monkey works?

That's only a snippet. The whole thing is well worth a read.

Filed Under: copyright, monkey, ownership, public domain, selfie

Photographer Still Insisting He Holds Copyright On Photo By A Monkey, Hints At Possibly Suing Wikimedia

from the test-cases dept

Three years ago, we wrote about the bizarre case of a monkey who apparently grabbed a photographer's camera in a national park in Indonesia and snapped a selfie (that was back before "selfie" was so common a term -- and we just called it a "self-portrait"). There were a few different shots, but the one that clearly got the most attention is this one: As we noted when we wrote about it, it seems fairly clear that the work is in the public domain. We were idly curious about how a news licensing agency (Caters New Agency) could claim the rights to the photograph. A few days later Caters itself demanded that we take down the photo, claiming that the copyright was held by the owner of the camera, David Slater. Slater himself insisted the copyright was his. However, as we explained in fairly great detail, looking at the laws of the US, the UK (where Slater is from) and Indonesia (where the picture was taken) the image is almost certainly in the public domain, no matter how you look at it.

Under all three laws, the rules say that the work needs to be done by a person, and a monkey doesn't count. Slater, however, claims that because the camera is his, it's still his copyright. While that's what many people think copyright law says, it's not actually what copyright law says at all.

The latest is that Slater is apparently still considering legal action against Wikimedia for refusing to take down the image from Wikimedia Commons.

The Gloucestershire-based photographer now claims that the decision is jeopardising his income as anyone can take the image and publish it for free, without having to pay him a royalty. He complained To Wikimedia that he owned the copyright of the image, but a recent transparency report from the group, which details all the removal requests it has received, reveals that editors decided that the monkey itself actually owned the copyright because it was the one that pressed the shutter button.

Mr Slater now faces an estimated £10,000 legal bill to take the matter to court.

First, I should note that if someone thinks the monkey holds the copyright, that's incorrect as well. While it's true that, in most cases, the person who takes the pictures gets the copyright, as noted above, the laws say it needs to be a person, so monkeys don't count. The image is public domain. The "monkey holds the copyright" claim appears to be a mistake by the author of the Telegraph piece. The guy who uploaded it has directly stated that he said there was no copyright (i.e., public domain) because there was no human author.

From here, Slater tries to flip the burden of proof, and claims that the copyright is his until proven otherwise in court:

“If the monkey took it, it owns copyright, not me, that’s their basic argument. What they don’t realise is that it needs a court to decide that,” he said.

While it's true that a court would decide the final result, the burden is actually on the copyright holder. To bring a copyright claim, you first have to prove that you hold the copyright. It's not the other way around. As Sherwin Siy of Public Knowledge notes, a system in which you needed a court to assert an affirmative defense would mean that no one could ever claim self-defense. That's just not how it works.

Slater also seems to believe in an odd "sweat of the brow" concept of copyright that simply isn't relevant:

“That trip cost me about £2,000 for that monkey shot. Not to mention the £5,000 of equipment I carried, the insurance, the computer stuff I used to process the images. Photography is an expensive profession that’s being encroached upon. They’re taking our livelihoods away,” he said.

The amount that the trip cost is meaningless on the copyright status of the photo. Photography is an expensive profession, but sometimes, apparently, it's so simple that... well... even a monkey can do it.

That said, the whole "jeopardizing his income" and "taking livelihoods away" lines are pretty extreme and ridiculous. This photo got Slater a tremendous amount of fame, and a chance to capitalize on that. If he wasn't so focused on a misguided legal fight against Wikimedia, why not use the photo as a calling card to get hired to do all sorts of other wildlife shots?

So why is this even an issue again at all? Well, that's partly Wikimedia's fault. It just released a transparency report, which discusses the whole monkey situation in a case study.

Filed Under: copyright, david slater, monkeys, photography, public domain

Duke Professors Looking To Make Legal Texts Affordable; Kicking Off With Intellectual Property Law

from the make-it-so dept

James Boyle and Jennifer Jenkins of the Center of the Study of the Public Domain at Duke Law School have recognized what many people have: the academic publishing world is insane. Textbook pricing is generally insane, in part because the people who make the decision (the professors) are not the people doing the buying (the students), meaning that the buyers have little to no choice in what they buy. That enables the publishers to jack up the prices to absolutely insane rates. This even includes legal "casebooks" and "statutory supplements," which are often composed of mostly public domain material (or, legal filings where the person who put together the book had no authorship). So Boyle and Jenkins are working on an open coursebook for intellectual property, which looks like it's going to be fantastic.

To kick it off, however, they've now released an Intellectual Property Statutory Supplement, which basically has the text of various relevant laws and international agreements concerning intellectual property in the United States. A somewhat equivalent book that many law schools use will run you over $50. But the Boyle/Jenkins statutory supplement is free to download, or available for print-on-demand at cost (around $10) for law students who need paper copies and can't bring electronic copies into classrooms. As they note in the announcement about this project:

We are motivated in part by the outrageously steep cost of legal teaching materials, (and the increasing restrictions on those materials — such as the removal of the right of first sale). This book is intended for use with our forthcoming Intellectual Property casebook (coming in the Fall) but can also be used as a free or low cost supplement for basic Intellectual Property courses — at the college, law school or graduate school levels. Whether or not you buy it, the free download will at the very least gives you a statutory reference book for those times when internet access is unavailable, and you just need to scratch that intellectual property research itch. The book is also available at cost of production — about $10.50 — as a handsomely covered paperback. Most of the current Intellectual Property Statutory & Treaty Supplements are $45-$50.

As you may recall, just a few months ago, we wrote about some well-known publishers of legal casebooks trying to undermine first sale rights by requiring students to give back books they bought in exchange for access to a digital copy (which may or may not stay online). It's good to see folks like Boyle and Jenkins step in and recognize that there's more to be gained by sharing knowledge and information, rather than seeking to lock it up. I hope other professors will follow suit.

Oh, and as a bonus, you owe it to yourself to read their posting on Thomas Macaulay's famed 1841 speech about the dangers of copyright maximalism. We've quoted from it at times, and the famous line from it is usually how "the effect of [the copyright] monopoly generally is to make articles scarce, to make them dear, and to make them bad." However, the entire speech is worth reading, and here they highlight a warning against copyright maximalism, in which he notes that it will lead to less respect for the law. Remember, he was saying this in 1841. Fairly prescient, huh?

At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot… Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create.

Filed Under: academic publishing, casebooks, copyright, creative commons, intellectual property, intellectual property statutory supplement, james boyle, jennifer jenkins, legal case books, patents, public domain, textbooks

Supreme Court Tells Conan Doyle Estate To Take A Hike: Consider Sherlock Holmes In The Public Domain

from the well-that-didn't-take-long... dept

Well that did not take long at all. We just wrote about the Sir Arthur Conan Doyle Estate begging the Supreme Court to issue a stay on the appeals court ruling that determined (easily) that Sherlock Holmes was in the public domain. The Conan Doyle Estate wanted the Supreme Court to issue a stay on the decision while it prepared an appeal. That stay would effectively block the publication of the book that Leslie Klinger was planning -- which was at the center of the lawsuit.

Justice Elena Kagan, who received the request for the stay from the estate has already rejected it with no comment or explanation. She did so without consulting with her fellow justices or without asking (or waiting) for a filing from Klinger. She has every right to just make this decision, but it certainly suggests that the Supreme Court (well, at least Kagan) finds the appeals court ruling to be quite persuasive, and is not at all convinced the estate has a legitimate argument. I'm sure that the estate will still ask the Supreme Court to rehear the case, but at least this initial response suggests that the Supreme Court is not interested. Chalk up another (small) victory for the public domain.

Filed Under: copyright, elena kagan, leslie klinger, public domain, sherlock holmes, supreme court
Companies: conan doyle estate

Conan Doyle Estate Asks Supreme Court To Step In And Block Sherlock Holmes From Being Public Domain'd

from the a-curious-case dept

In February of last year, we wrote about author/lawyer Leslie Klinger suing the Conan Doyle Estate for demanding a license for his latest book about Sherlock Holmes. An earlier book that Klinger had published about Holmes had resulted in his publisher paying the estate a license, but Klinger felt he didn't need such a license for the latest book. Nearly all of Sir Arthur Conan Doyle's Sherlock Holmes works are in the public domain (published before 1923), but there is one remaining book of a bunch of stories called The Case-Book of Sherlock Holmes which was published after 1923 and is still in copyright. Klinger insists his own latest book would only pull from the public domain works, but the Doyle Estate made the amazing argument that it could effectively keep the characters of Holmes and Watson locked up forever by claiming that each new work added another layer to the character in an ongoing fashion, and the clock would start anew each time.

This reasoning got rejected quickly by the district court, and last month an appeals court ruled (strongly) against the estate, making it quite clear that the basic characters are very much in the public domain. As the court noted, the estate doesn't get to make up copyright law the way it would like:

We cannot find any basis in statute or case law for extending a copyright beyond its expiration. When a story falls into the public domain, story elements—including characters covered by the expired copyright—become fair game for follow-on authors...

The court seems completely unpersuaded by the Conan Doyle Estate's ridiculous fear that (*gasp*) if Holmes goes into the public domain, some people might create different versions of him. That's actually kind of the point of the public domain. That's what's supposed to happen.

Well, wouldn't you know it? The Conan Doyle Estate is not giving up, and appears poised to take this to the Supreme Court. It has started out by asking the Supreme Court to stay the appeals court ruling (basically blocking the publication of the book) until the estate can ask the Supreme Court to hear the full case. The estate's argument is about as silly as you'd expect. Basically, it insists that because Klinger has not handed over his entire work, it can't be declared to be non-infringing, and thus his publication should be blocked. The Estate is actually flipping the equation (without admitting it). It's correct that to show infringement, you first would need to examine the work, but here it's actually demanding that a negative be proven. It's demanding that Klinger present his final work to prove that it doesn't infringe. That's silly. If Klinger's final work does infringe, then the estate can bring it to court. The question Klinger's original lawsuit addressed was more straightforward: so long as he relies on the public domain works as his source material, there shouldn't be anything that infringes. And two courts have agreed with him.

Hopefully the Supreme Court rejects this, which would also likely mean that it will reject the eventual appeal from the estate as well. However, if Justice Kagan (who is handling these kinds of requests) decides to grant the stay, then we could be in for another round and another chance for the Supreme Court to dig in on copyright issues. Given its past record -- especially on the public domain -- this might be a dangerous thing.

Filed Under: copyright, elena kagan, leslie klinger, public domain, sherlock holmes, sir arthur conan doyle, surpreme court
Companies: conan doyle estate