When  last we checked in on Sir Arthur Conan Doyle’s posthumous intellectual property enforcement activities (“Conan Doyle Estate  Down for the Count“), his estate’s attempt to enjoin publication of a collection of original Sherlock Holmes stories, A Study in Sherlock, was rejected in an opinion written by Seventh Circuit Judge Richard Posner. In that case Doyle’s literary heirs argued that although only the final 10 Sherlock Holmes stories (first published after 1922) remain under copyright, while the remainder of the canon is in the public domain, any secondary work using characters and story elements that were not fully “rounded out” until those final installments–most notably Holmes and Dr. Watson–infringed the still-extant copyrights.

Judge Posner, however, ruled that the copyrights on the final 10 stories protected only those literary elements that were “original” to those stories, for example, Holmes’s late-life change of attitude toward dogs. Using the road map Judge Posner provided, the Conan Doyle Estate has now filed a complaint against Miramax Films seeking to enjoin release of its forthcoming film, Mr. Holmes, which allegedly uses story elements that were first introduced in the Conan Doyle stories that remain under copyright.




bgtankHere is a marketing conundrum. How do you brand a $575,000 specialty vehicle, built on a Ford truck chassis, that is designed to look like a tank? If you answered “Name it after General George S. Patton” give yourself a 21-gun salute. But here’s the rub—in one of the most astute tactical moves of his storied military career, Patton died in the State in the California which, as we have seen before, is especially solicitous of the eternal publicity rights of anyone who ever died on its soil. In a lawsuit filed the federal court in Los Angeles, the heirs and assigns of “Old Blood & Guts” have brought this heavy artillery to bear on U.S. Specialty Vehicles.



holmesWe have been following the rather swift progress through the courts of Klinger v. Conan Doyle Estate, a case which raises the fascinating question of when copyright protection on “franchise” literary characters who develop over a series of works, published over a period of many years, expires. Klinger, the editor of books containing original stories based on the Sherlock Holmes character and other elements of Arthur Conan Doyle’s original stories,  brought an action seeking a declaratory judgment that copyright protection had expired on a long list of Sherlock Holmes story elements which were now in the public domain, excusing him from any obligation to pay royalties to the estate. (See CEASE AND DESIST LETTERS FROM BEYOND THE GRAVE–CONAN DOYLE EDITION for a description of Klinger’s complaint and CONAN DOYLE ESTATE LOSES ROUND 1 for a summary of the district court opinion largely vindicating Klinger’s position.) This week the Seventh Circuit weighed in with an opinion affirming the district court, penned by Circuit Judge Richard Posner. As with any Posner opinion, even affirmances, this one adds original analysis well worth a closer look.



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.



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.



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.


200px-William_Faulkner_1949Some time ago, in our continuing series of “Cease and Desist Letters from Beyond the Grave,” we reported on a complaint for copyright infringement filed by William Faulkner’s literary estate against Sony Pictures, arising out of a single line spoken by Owen Wilson in Woody Allen’s Midnight in Paris: “The past is not dead. Actually, it’s not even past. You know who said that? Faulkner, and he was right. And I met him too. I ran into him at a dinner party.” The plaintiff might have thought it caught a lucky break in that the judge, Michael P. Mills of the Northern District of Mississippi, was quite a Faulkner aficionado. Turned out to be just the opposite. Other than taking umbrage at Sony’s contention that Faulkner’s Requiem for a Nun was a “relatively obscure” work (“Nothing in the Yoknapatawpha canon is obscure,” the court wrote), Judge Mills came down squarely on the side of the filmmakers, dismissing the complaint on the grounds that the disputed quote constituted a fair use. His opinion is well worth reading in full, but his attitude is well summed up in one nugget: “How Hollywood’s flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court’s comprehension.”


Ellen-Kardashian-with-Kardashians-at-XMas-1913134753907818054How much might the late Robert Kardashian’s diary and personal photographs documenting the childhood exploits of Kourtney, Kimberly, and Khloé be worth? I’m no Kardashian maven, but I’m guessing a whole lot. As the girls allege in a Complaint they (together with brother Robert Jr. and mom Kris Jenner) filed in Federal Court in Los Angeles, with uncharacteristic understatement, “the Kardashian family are well-recognized in pop culture and most things ‘Kardashian’ have become extremely valuable.” So  what’s their beef with step-mother Ellen Pearson (second from left, in happier times) who married their dad two months before his untimely death in 2003?



holmesLeslie Klinger is the author or editor of two dozen books and numerous articles on Sir Arthur Conan Doyle’s Sherlock Holmes stories.  Recently he edited a collection, called A Study in Sherlock, containing original stories based on the Holmes’ character and other elements of Conan Doyle’s originals.  Although the entire Sherlock Holmes canon is in the public domain in most of the world, in the United States the last 10 stories published remain under copyright.  The publisher of A Study in Sherlock, Random House, acceded to demands of the Conan Doyle Estate that it take a license and pay a royalty.  The story continues . . .



The literary estate of William Faulkner has been on quite a tear this past week.  On October 25th it filed a copyright infringement suit against Sony Pictures Classics, and on October 26th another against Northrop Grumman Corporation and The Washington Post.  Both suits center around the attibuted use of a famous Faulkner aphorism.  In the Sony case the alleged infringement is a line spoken by the Owen Wilson character in Woody Allen’s Midnight in Paris: “The past is not dead! Actually, it’s not even past.  You know who said that?  Faulkner.”  Northrup Grumman arises out of a July 4th adverisement that the company ran in the Washington Post, which included the following:

We must be free

not because we claim freedom,

but because we practice it.

— William Faulkner

Is it all sound and fury, signifying nothing?  Or could this mean the end of the epigraph business?


  • Recent Posts

  • Unfair to Genius

    Unfair to Genius is an enlightening and entertaining romp through 60 tumultuous years of legal, artistic, and economic change in the American popular music industry, as seen through the lens of one of its most prolific copyright litigants and legendary outsiders, Ira B. Arnstein. "I suppose we have to take the bad with the good in our system which gives everyone their day in court," Irving Berlin once said, but "Arnstein is stretching his day into a lifetime."

    "Rosen paints a fascinating portrait of one of history's most fertile creative eras--the rise of Tin Pan Alley, or the 'Age of the Songwriter' as Rosen calls it--and the book brims with history relevant to today's disruptive technology climate."

    -Publishers Weekly

    "There's fun to be found in 'Unfair to Genius' as it leavens legal history with showbiz anecdote, and insight with amusement."

    -The Wall Street Journal

    “Superbly researched and written . . . Rosen deftly plots the rise of the music industry in America."


  • Categories

  • Gary A. Rosen

    Gary A. Rosen, a lawyer, has litigated copyright, patent, and other intellectual property cases for more than 25 years, and is a Lecturer in Legal Studies at the University of Pennsylvania's Wharton School. Before entering private practice, he served as a law clerk to federal appellate judge and award-winning legal historian A. Leon Higginbotham, Jr. He holds a degree in physics from Haverford College and graduated magna cum laude from the University of Michigan Law School. He and his wife Lisa, a physician, and their two children live outside Philadelphia.
  • Advertisements
%d bloggers like this: