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.





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.



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.”


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?


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    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."

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  • 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.
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