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Sherlock Holmes, meet 7th Circuit Court of Appeals Judge Richard Posner.
In June, Judge Posner decided that much of the Sherlock Holmes canon was in the public domain. He ruled in favor of author Leslie Klinger, arguing that copyright has expired on most Sherlock Holmes story elements since all but 10 of Sir Arthur Conan Doyle‘s Sherlock Holmes stories predate 1923. In determining this, Posner rejected the Doyle estate’s arguments that Holmes was a “complex” character whose fictional personality couldn’t be dismantled into in- and out-of-copyright parts.
On Monday, Posner followed up his opinion with another one that orders the Doyle estate to pay Klinger more than $30,000 in legal fees. The latest ruling is almost as extraordinary as his June decision. Posner knocks the Doyle estate’s license demands as “a form of extortion” and celebrates Klinger for performing a “public service.”
Other companies, including big entertainment giants with modern Sherlock Holmes adaptations (Warner Bros.’ Sherlock Holmes films, BBC’s Sherlock and CBS’ Elementary, to name a few), have just paid the small license fees, but not Klinger, who took the estate to court seeking declaratory relief after receiving a legal demand on In the Company of Sherlock Holmes, a collection of short stories by contemporary authors inspired by the Doyle canon. “For exposing the estate’s unlawful business strategy, Klinger deserves a reward but asks only to break even,” writes Posner.
The appellate judge goes through the incentives of the copyright system, which he believes favors licensing even when it’s not necessary. The fact that a subsidiary of Warner Music Group collects $2 million a year on the 19th century song “Happy Birthday to You” gets a mention. (That issue is presently being litigated.)
In today’s ruling, Posner softly suggests that the Doyle estate might have violated antitrust laws by telling Amazon and other booksellers to enforce its copyright claims against Klinger. He also has a suggestion for the Doyle estate, which is now attempting to get the U.S. Supreme Court to tackle the case. He writes, “It’s time the estate, in its own self-interest, changed its business model.”
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