Attorney’s fees are granted, and scorn is cast broadly copyright over-reachers.
There is yet another arrow in the quiver for those taking aim at keeping classic characters and works out of the public domain. In June I posted about a decision finding that Sherlock Holmes, for all intents and purposes, is in the public domain and available for all to use in new works. It was a somewhat tangled question, has persisted in one form or another for years, and in particular, the Arthur Conan Doyle estate has aggressively enforced its claim of exclusive ownership of the Sherlock Holmes stories and characters, long after many believed the relevant copyrights had expired and they had passed into the public domain. When Leslie Klinger sued for the right to publish a collection of new adventures of Sherlock Holmes over the aggressive objections of the Doyle estate, the Doyle estate lost in district court, appealed, and lost again.
Klinger requested an award of attorney’s fees from the Doyle estate, which can be granted to the “prevailing party” by the court in a copyright action. Judge Posner’s opinion puts an exclamation point on his scorn for the Doyle estate’s attempts to extend copyright protection in the Sherlock Holmes property:
There is no ground known to American law for extending copyright protection beyond the limits fixed by Congress. The estate’s appeal bordered on the quixotic. . . . [T]he defendant’s only defense bordered on the frivolous. . . . The Doyle estate’s business strategy is plain: charge a modest license fee for which there is no legal basis, in the hope that the “rational” writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand. . . . [A] form of extortion.
Klinger is made out to be the hero in Judge Posner’s story:
[H]e is seeking by the present motion not to obtain a reward but merely to avoid a loss. He has performed a public service . . . For exposing the estate’s unlawful business strategy, Klinger deserves a reward but asks only to break even.
This forceful smack-down of the Doyle estate caught other copyright over-extenders in it the crossfire. I mentioned “Happy Birthday” in my previous Doyle post, and here it is in the attorney’s fees opinion: “[T]he Summy-Brichard Company, a subsidiary of Warner Music Group, which receives approximately $2 million per year in royalty payments for licenses to the song ‘Happy Birthday to You,’ despite the fact that the song is most likely in the public domain…” (internal quotations omitted).
This strong decision that widely casts aspersions against the over-extension of copyright by IP owners. If it gets more widely known, it can be a powerful response to a cease and desist letter for some of the other long-existing characters and works with questionable copyright claims. And if you’re bringing an action to show that a work is in the public domain, the Seventh Circuit seems a pretty friendly place to look.