The Copykat: Artists cry foul, the 'Sherlock Holmes' case has a legal bite in its tail - and is Disney skating on thin Ice?

Ahol Sniffs Glue’s original mural in Miami.

Artnet tells us that Miami street artist Ahol Sniffs Glue (real name David Anasagasti) has filed a law suit against popular teen clothier American Eagle Outfitters  for copyright infringement. The company appropriated Ahol’s signature “lazy eyeball” motif for international advertising campaigns, store displays, social media pages, and a billboard in New York City, all without consulting or compensating the artist. In the adverts  a  male model is pictured standing against a wall painted by Ahol in Miami’s Winwood Arts District with a spray can in hand, surely implying that he is the creator of the mural (the artist himself is described as a “bearded, heavily-tattooed Cuban-American").  According to the Huffington Post, the store even went as far as to hire artists to produce a rendition of the well-known motif for display at a store opening in California, plastering a large American Eagle eagle in the middle of it. Photo: Flickr/Dogslobber. 

More on art:The Age reports that Melbourne artist Jarrad Kennedy claimed he is "shocked" by the similarities between his 2005 work Court and the newly unveiled $2.5 million Pavilion by Sydney artist Hany Armanious: Cate Nagy, a partner in the intellectual property team at King&Wood Malleson told the Age that no one owns the concept of a giant milk crate saying "It is clear there's no copyright in ideas or in artistic concepts per se. The independent creation of a huge milk crate wouldn’t infringe copyright" adding "For a copyright in Mr Kennedy's case there has to be some act of copying, there has to be a causal link," Ms Nagy said. "Kennedy would have to prove that he [Armanious] had seen his milk crate." The City of Sydney said on Wednesday that Armanious had never seen Kennedy's work, which was a finalist in the 2005 McClelland art prize. Kennedy said He told Facebook commenters that he would be approaching Armanious directly saying "I was shocked to say the least. Art may be open to interpretation, but precedents dictate that the artwork is in breach of copyright. The artist will receive notice tomorrow," he said on the social media post. More about Pavillion here. 

Yahoo has filed a complaint with Germany’s Federal Constitutional Court challenging Germany's recently introduced copyright that gives publishers exclusive commercial rights over their content online except in the case of single words or "small text passages". “We believe that the Ancillary Copyright Law fundamentally violates our constitutional rights as a search engine operating in Germany and we hope the Court will find in our favor, and ensure that German users can benefit from the same breadth of information online as others around the world,” a Yahoo spokeswoman said in a statement. Spain is now one step closer to passing a law that may force Google News and other content aggregators to pay for links. Under the new Copyright Act passed by Congress, websites linking to articles by the industry’s biggest news organizations will have to pay a fee to the original source, or face fines of up to $400,000. whilst dubbed a 'google tax',  social media sites such as Facebook and Twitter are explicitly exempt, although the status of properties like Reddit, Digg and others is less clear, since the law targets “electronic news aggregation systems.”

Disney could be heading to trial over copyright infringement claims involving it's blockbuster animated hit and $1.22 billion grossing Frozen.  Kelly Wilson, who created a short 2D computer-animated film called The Snowman, has survived the first round in a copyright lawsuit against the company, after a judge noted some key differences between the two films - such as Frozen being lighthearted and The Snowman not, but also found some similarities.

Leslie Klinger has prevailed in his clam for legal costs against the Conan Doyle Estate. in a ruling issued on Monday, the same three-judge appellate panel who heard the case that decided that Mr Klinger did not have to pay a license fee to the Estate for his modern anthology of Sherlock Holmes stories because these stories featured characters that were first published before 1923, and their copyrights had expired, unanimously ruled that Mr. Klinger was entitled to $30,680 in legal fees: “The estate opposes Klinger's request on the same hopeless grounds that it had urged in its appeal, but does not question the amount of fees as distinct from Klinger's entitlement to an award of any amount of fees in this case” says the ruling in Leslie S. Klinger v. Conan Doyle Estate, Ltd. The court said adding “Unless Klinger is awarded his attorney's fees, he will have lost money … in winning an appeal in which the defendant's only defense bordered on the frivolous: A Pyrrhic victory if there ever was one,” adding “It's time the estate, in its own self-interest, changed its business model”.  Giving the decision Judge Richard Posner went further, criticising the Estate's 'disreputable business practices' and noting that the Estate had threatened Mr Klinger and his publisher Pegasus Books saying "if you proceed to bring out [Klinger's second book'] unlicensed, do not expect to see it offered for sale by Barnes & Noble, Amazon and similar retailers' explaining 'We work with those companies routinely to weed out unlicensed Sherlock Holmes from their offerings and we will not hesitate to do so with your book'. The Judge rebuked the Estate for 'extortion' and adding that Mr Klinger had performed a 'public service'. Lawyers for the Estate said the judge was 'out of touch' and that an appeal was being considered. The Times August 6th 2014 page 21 and moer at http://gigaom.com/2014/08/05/judge-posner-orders-estate-to-pay-up-over-sherlock-holmes-copyright-extortion/. 

The IFPI (International Federation of the Phonographic Industry) has written a letter to five of  Austria’s largest internet service providers, demanding that they block some of the largest torrent sites within two weeks including The Pirate Bay, Isohunt, 1337x.to, and H33t.to, The letter cites movie companies Constantin Film and Wega legal action against Austrian net firm UPC Telekabel Wien to block movie website called Kino.to in Austria - which was upheld in the court of Justice of the European Union. The IFPI has also weighed in on a website blocking bill passed by Singapore’s Parliament which will provide that content owners can seek injunctions from the Singapore High Court that would require ISPs to block specific copyright infringing websites. Copyright owners would not be required to send any takedown notices. Frances Moore, CEO of IFPI, said  “The recording industry welcomes the fact that Singapore has joined the list of nations that consider website blocking to be a proportionate and effective tool to tackle digital piracy. Website blocking is an important way of reducing infringement and stimulating the development of a licensed digital music market. We urge policymakers in other countries to look at introducing measures similar to those set to be implemented in Singapore.” In the UK, the movie industry's Federation Against Copyright Theft has successfully forced another torrent sharing site offline, this time TorrentShack, with the operator of the file-sharing platform admitting that he has complied with orders from the anti-piracy group to close down his service in a bid to avoid costly legal action telling TorrentFreak  "They have said that I need to hand them over the domain to this site and to cease my involvement with running such a site. If I comply then any and all charges against me will be dropped".

Breaking News - 7th Circuit confirms that Sherlock Holmes and Dr Watson are in the public domain

Today the US Court of Appeals for the 7th Circuit issued its decision in Leslie Klinger v Conan Doyle Estate, in which upheld the decision of the US District Court for the Northern District of Illinois - Eastern Division that Mr Klinger was free to use material in the 50 Sherlock Holmes stories and novels that are no longer protected by copyright. Writing on behalf of the Court, Circuit Judge Richard Posner recalled the decision in Silverman v CBS, in which the 2nd Circuit held that when a story falls into the public domain also its story elements - including its characters - do. Works derived from earlier works whose copyright has expired may nonetheless be protected, but copyright will only extend to the "incremental additions of originality contributed by the authors of the derivative works." 

Much more from Eleonora on the IPKat here

Background here http://the1709blog.blogspot.co.uk/2013/12/the-return-of-sherlock-holmes.html and here http://the1709blog.blogspot.co.uk/2013/09/the-expiring-detectives-last-case.html and here http://the1709blog.blogspot.co.uk/2013/03/sherlock-holmes-and-case-of-copyright.html 

The Return of Sherlock Holmes?

Jeremy Brett as Holmes in 1985

Somewhat appropriately on the day that news broke that the two writers of the BBC's 'Sherlock' television series starring Martin Freeman and Benedict Cumberbatch revealed that they killed off Holmes in the final and sixth episode of the widely popular drama because they feared the BBC would axe the series, came news that the US District Court for the Northern District of Illinois had reached a decision in the case brought by Los Angeles-based attorney Leslie Klinger, who was seeking a declaratory judgement that all elements of the canon of Sherlock Holmes works published before 1923 are free for anyone to use. US copyright law, applied to the works of Sir Conan Doyle, creates a scenario whereby most of the works have entered the public domain, while only the ten stories that were published after January 1, 1923, published in The Case-Book of Sherlock Holmes, are still protected

Writers Steven Moffat and Mark Gattis said they used Arthur Conan Doyle's The Final Problem, the 25th and final short story in Conan Doyle's original series of works - when Holmes and Professor Moriarty both fall to their deaths from the Reichenbach Falls in Switzerland - and that they had included The Final Problem as well as the Irene Adler story (based on "A Scandal in Bohemia") and The Hound of the Baskervilles as the final three scripts for the second three part series because they were worried that the BBC series might not be around for long enough for them to run their favourite plots. But now back to the USA, and Mr Klinger's claim.

Miri Frankel first covered Mr Klinger's claim back March 2013 here on the 1709 Blog and we updated this in September in here in The Expiring Detective's Last Case? Mr Klinger’s complaint centred on the position taken by  the Conan Doyle Estate which argued that all elements of the Canon of Sherlock Holmes (the fifty-six short stories and four novels) remain protected by copyright because; “Holmes is a unified literary character that wasn’t completely developed until the author laid down his pen.”  In other words, the character of Sherlock Holmes and all related copyright elements remain protected until 2023, drawn from the date upon which the final story published by Sir Conan Doyle enters the public domain.

The District Court first examined whether the Sherlock Holmes elements published prior to 1923 ("Pre-1923 Elements") are indeed elements that are no longer subject to copyright protection and are now in the public domain.  Applying the 1989 decision of the US Appeals Court for the Second Circuit in  Silverman v. CBS, Inc.the District Court explained, "[i]t is a bedrock principle of copyright that 'once work enters the public domain, it cannot be appropriated as private (intellectual) property,' and even the most creative of legal theories cannot trump this tenet."  Thus, as Miri explains over on the IPKat, the public may use the Pre-1923 Elements without obtaining a license from the Conan Doyle Estate.  

Basil Rathbone as Holmes with 
Nigel Bruce as Dr Watson in 1939

Miri explains that the District Court next turned to the question of whether elements of the Sherlock Holmes canon published after 1923 ("Post-1923 Elements"), such as Dr Watson's athletic background and Sherlock Holmes' retirement, are "increments of expression" that are copyrightable, or if the Post-1923 Elements are plot elements, ideas, or events that are not copyrightable.  Mr Klinger argued that these Post-1923 Elements are merely events in the lives of the Sherlock Holmes characters and are not subject to copyright protection. The District Court examined the Post-1923 works to determine whether they constituted "incremental original expressions" that are readily distinguishable from the prior works.  It concluded that, as storylines, new characters and new character traits, these Post-1923 Elements are indeed increments of expression that are and remain subject to copyright protection, "and as a result neither Klinger nor the public are entitled to use them." So - a partial but not complete victory for Mr Klinger - yes, he can use the first 25 works - but not new elements  introduced [post 1923. Elementary, my dear reader?

This is a good time for Sherlock-based entertainments, with  BBC's Sherlock is returning for its third series and CBS's Elementary is in the middle of its second season. A third Guy Ritchie-directed, Robert Downey Jr.- and Jude Law-starring movie is reportedly in the works - all licensed by Jon Lellenberg, who is the American agent for the Conan Doyle Estate.  That said, any writer basing new derivative works on the characters will need to be very careful. The District Court stopped short of granting a permanent injunction barring the Conan Doyle Estate from asserting copyright in the elements of the Sherlock Holmes canon, even those elements that the District Court agreed are in the public domain, so writers face the possibility of a license fee demand - or threat of litigation from the Conan Doyle Estate even for pre-1923 works - albeit surely such claims for a licence may well be unfounded in law - but maybe all but the brave will be deterred from entering this Valley of Fear. Let the Great Game commence. 

BBC One premiered a "Sherlock" mini-episode online on Christmas Day 2013, entitled "Many Happy Returns". It acts as a prequel to the upcoming third series, picking up two years after the second series finale. The synopsis for the episode reads "Sherlock has been gone for two years. But someone isn't quite convinced that he's dead." Indeed, it seems he is very much alive!

The District Court's decision can be found here and more here.  

More on Sherlock Holmes here.

Update: Post decision there have already been some moves by the Estate: It seems at the heart of this is that because the plaintiff Leslie Klinger did not seek a “judicial determination of the copyright status of the Sherlock Holmes character,” the court did not address the issue - and now the Estate's lawyer Benjamin Allison has said "While plaintiff Leslie Klinger sought a ruling that some of these character traits were free for all to use ..... the Court rejected Mr. Klinger's effort in this regard and held that all such characteristics of Holmes and Watson are protected.”  Klinger however, called Allison’s statement “a great attempt at spinning by the Estate,” after having lost on their theory of an “incomplete” character telling Publishers Weekly “The Court carefully said that it was not determining that the character was either in or out of copyright protection; Instead, the Court said that elements were free of protection.”

http://www.publishersweekly.com/pw/by-topic/digital/copyright/article/60503-conan-doyle-estate-says-sherlock-not-free-yet.html