The American Society of Composers, Authors, and Publishers (ASCAP) is 100 years old today. I have a guest post on ASCAP’s profound influence on the course of American popular music over at the Oxford University Press blogvh0039.


holmesEarly this year, we reported on the filing of Klinger v. Conan Doyle Estate in the federal district court in Chicago. Leslie Klinger is the editor of a collection, called A Study in Sherlock, containing original stories based on the Sherlock Holmes’ character and other elements of Arthur Conan Doyle’s original stories. He has prepared a sequel entitled In the Company of Sherlock. The publisher of the first book acceded to demands of the Conan Doyle Estate that it take a license and pay a royalty, but the publisher of the sequel balked, and the book remains unpublished in legal limbo.

Klinger brought an action seeking a declaratory judgment that a long list of Sherlock Holmes story elements—including such characters as Professor Moriarity, Sherlock’s smarter brother Mycroft, his landlord Mrs. Hudson and the Baker Street Irregulars, Dr. Watson’s “thick neck and small moustache,” along with such Holmesian traits as his skills in chemistry, disguise, and maritial arts, his methods of reasoning, and his drug addiction—were in the public domain.

We can now report that on December 23 Klinger got his Christmas wish—a summary judgment declaring that virtually all important Sherlock Holmes story elements are free for public use—albeit with one proviso.

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We have been following the ups and downs of The Authors Guild, Inc. v. Google, Inc., the long-running copyright dispute over Google’s plan to digitize all the world’s libraries, since the inception of this blog. After the parties’ grand bargain, which had the potential to create a unique on-line repository of virtually all the world’s literature under Google’s auspices, was rejected, primarily due to antitrust concerns, the case came to center on the Google Books search engine, which allows full-text searching of unlicensed copyrighted books, but displays only small “snippets” as search results.

Last time we checked in, the Second Circuit Court of Appeals had decertified the plaintiff class, and ordered Judge Denny Chin to  rule on Google’s fair use defense first. As we noted,  the appellate panel’s “comments at the oral argument and its suggestion that resolution of fair use could ‘moot’ class certification strongly telegraph[ed] acceptance of Google’s arguments that the current iteration of Google book search, by presenting only snippets of copyrighted works, is a transformative research tool.” Not surprisingly, in a 30-page opinion issued November 14, Judge Chin so ruled.

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XWith the 50th anniversary of the 1964 Civil Rights Act fast upon us, the market for papers, ephemera, and memorabilia of the civil rights movement seems to heating up, bringing with it a wave of legal activity by the heirs, assigns, and executors of some of its most iconic figures, what we cheekily call “cease and desist letters from beyond the grave.” In just the past few weeks, disputes over the legacies of Rosa Parks, Martin Luther King, and Malcolm X have all landed in court.

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cariouprinceIn a post here back in April, we reported on the Second Circuit’s ruling in a fascinating fair use case involving the use of copyrighted photographs by appropriation artist Richard Prince, Cariou v. Prince. We observed that in assessing the “purpose and character” of Prince’s use the court had taken an exceptionally broad and subjective approach to the question of whether the accused works were “transformative uses.” We asked whether there was “a judicial double standard favoring artists that judges and their acquaintances either “get,” or think they ought to “get,” over those who appeal strictly to the hoi polloi?”

Cariou has now filed a petition for certiorari with the U.S. Supreme Court presenting that very question without the snark:

Whether the first statutory fair use factor, “the purpose and character of the [secondary] use,” requires consideration of the secondary user’s urpose (i.e., his or her justification for appropriating particular copyrighted materials), and not just of the secondary work’s expressive character, as perceived by judges employing their own personal aesthetic sensibilities.

Prince’s response to the petition, which is available here, frames the issue in starkly different terms:

Whether the Second Circuit’s fact-specific, interlocutory decision that twenty-five colored collages depicting rock stars and erotic imagery in a post-apocalyptic alternative reality made fair use of altered portions of black-and-white portraits of Rastafarians and Jamaican landscapes . . . .

The Supreme Court has not seriously addressed fair use in the nearly twenty years since it adopted the “transformative use” standard in Campbell v. Acuff-Rose Music, the “Pretty Woman” parody case. The betting here is that the Court will deem Cariou v. Prince an appropriate vehicle for revisiting the issue and perhaps putting the genie at least partially back in the bottle.

UPDATE 11/13/13: I lose. The Supreme Court denied the petition for cert.


Frank-Sinatra-Grave-Top-TenzCease and Desist Letters from Beyond the Grave is an occasional, and judging by the visitor statistics, popular feature of this blog, second only to the Book Reports in traffic. Each installment of the series has been devoted to some notable example of the overreach by the heirs and estates of literary and show business luminaries, such as Frank Sinatra, William Faulkner, and Sir Arthur Conan Doyle. We would be remiss then, not to note the passing of one of the true pioneers of the genre, Roger Richman, whose obituary appears in today’s New York Times.

Back in 1979, his legal career at a standstill, Richman was happy to get W.C. Fields as a client, despite the fact that the comedian had passed away in 1946. After successfully negotiating some licensing deals for the Fields’ estate, including one with the postal service for a commemorative stamp, Richman had found his niche. He was instrumental in gaining the passage of the California Celebrity Rights Act, which opened the floodgates for the licensing of dead celebrity images, and has served as the basis for countless cease and desist letters from beyond the grave.  R.I.P.


On a rain-soaked night in October 1913, an Irishman, a Scotsman, and a Romanian-born Jew walked into Lüchow’s Restaurant, the German sausage and schnitzel emporium on Manhattan’s East 14th Street. The punch line? The dinner those three European émigrés shared on that night 100 years ago set in motion a chain of events that has been shaping and reshaping the sound of American popular music ever since.vh0039

Victor Herbert was the English-speaking world’s preeminent composer of light opera.  George Maxwell was the American representative of the G. Ricordi music company of Milan, then as now publisher of the grand operas of Giacomo Puccini. Nathan Burkan was Herbert’s good friend and lawyer, and at age 35 America’s leading expert in copyright law. The half-dozen others who braved the elements to attend were composers of theatrical music little-remembered and only rarely heard today, along with their principal publisher, Jay Witmark. But the list of no-shows that evening (dinner had been catered and the tables set for 35 expected attendees) included Irving Berlin and Jerome Kern, who would be among the earliest and most conspicuous beneficiaries of the evening’s topic of conversation, the establishment of a means for collecting royalties for the public performance of musical compositions in the United States.

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11WILLIS-articleLarge In one of the very first posts on this blog last year, we reported on Victor Willis’s “early victory” in his quest to recover valuable copyrights on songs he co-wrote for the Village People back in the 1970s.  (Willis, pictured here, was also their lead singer, dressed back in the day as the “cop.”) Willis was one of the first to invoke a provision of the 1976 Copyright Act that permits artists to “clawback” copyrights they may have improvidently assigned away after 35 years, upon giving two years written notice. The provision is intended to “safeguard[ ] authors against unremunerative transfers” and address “the unequal bargaining position of authors, resulting in part from the impossibility of determining a work’s value until it has been exploited”

Willis had succeeded in blocking the publishing and recording companies that presently control those copyrights from opposing his termination notice on the ground that his co-writers had not joined in it. It was an important victory, but only a provisional one, as other issues remained to be litigated and an appeal of that ruling would seem to be inevitable in due course. Thus, I was surprised to see a story posted on the New York Times website today breathlessly reporting that Willis would indeed be regaining control of “Y-M-C-A,” this coming Friday, the 35th anniversary of his original copyright assignment and, what’s more, he’s not so sure he is going to let anyone else use it. Should bands booked for weddings and bar mitzvahs this weekend be revamping their set lists?

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subwayNo, this is not another contribution to the on-going debate over whether Subway’s vaunted “footlong” sandwiches actually measure 12 full inches. I will leave that to the consumer affairs bloggers. Our concern is with Subway’s effort to monopolize the word “footlong” as a registered trademark for 12-inch, give or take, heros/submarines/wedges/hoagies/grinders. Last week the Trademark Trial and Appeal Board, in an EXTRA LARGE™ 61-page opinion, rejected Subway’s application, ruling that “footlong” was a widely and long-used generic term for for sandwiches of a certain length.


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As readers of this blog and my book, Unfair to Genius, must know, I am fascinated by the ways in which developments in the law sometimes shape and are sometimes shaped by developments in the arts. They will also know that I have a weakness for a good story about the colorful luminaries and rapscallions that populated the arts and the copyright industries in the early 20th Century. Professor Robert Spoo’s Without Copyrights: Piracy, Publishing and the Public Domain, just published by Oxford University Press, offers a heaping helping of just the stuff I crave.

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