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Adding New Story Elements Didn't Keep Sherlock Homes Characters Under Copyright in Later Stories

The U.S. Court of Appeals for the Seventh Circuit decided that the original characters in pre-1923 Sherlock Holmes works by Sir Arthur Conan Doyle are in the public domain, though additional elements were added to the characters in the stories still under copyright. Klinger v. Conan Doyle Estate Ltd., 14-1128.

Leslie S. Klinger, co-editor of the short stories anthology In the Company of Sherlock Holmes , filed suit for a declaration that pre-1923 character and story elements in Doyle's last ten Sherlock Holmes stories, published between 1923 and 1927, were also in the public domain. The estate argued, however, that no one work was a separate “derivative work” from the others, so the Holmes and Dr. Watson characters continued to have copyright protection.

Prior to this case, the Seventh Circuit had yet to decide whether literary sequels or series constituted derivative works. The U.S. District Court for the Northern District of Illinois, in which Klinger filed his declaratory action, granted summary for the plaintiff on this issue, by finding “the Ten Stories are derivative works of Sir Arthur Conan Doyle's first Sherlock Holmes story.” Specifically, Chief U.S. District Judge Rub'n Castillo observed: “The Post-1923 Story Elements, Dr. Watson's second wife and his athletic background, as well as Sherlock Holmes' retirement, are a character, character trait, and a storyline, respectively. These elements originated in the copyrighted Ten Stories.”

Affirming, Circuit Judge Richard Posner wrote for the appeals court: “From the outset of the series of Arthur Conan Doyle stories and novels that began in 1887 Holmes and Watson were distinctive characters and therefore copyrightable. They were 'incomplete' only in the sense that Doyle might want to (and later did) add additional features to their portrayals. The resulting somewhat altered characters were derivative works, the additional features of which that were added in the ten late stories being protected by the copyrights on those stories. The alterations do not revive the expired copyrights on the original characters.”

Illinois Federal Court Agrees with Copyright Infringement Plaintiff that Expert Can be Used To Help Explain Complexities of Music Created on Computers, But Rules for Defendant Lady Gaga

The U.S. District Court for the Northern District of Illinois decided that a songwriter raised a triable issue of fact as to whether defendant Lady Gaga had a reasonable possibility of access to the plaintiff's song “Juda.” But the district court went to grant summary judgment for Lady Gaga and her co-defendants by finding no substantial similarity between “Juda” and Gaga's song “Judas.” Francescatti v. Germanotta , 11 CV 5270. Rebecca Francescatti had made a recording of her song in 2005 with defendant Brian Gaynor. In 2010, Gaynor's production partner Brian Lee introduced their third partner, DJ Paul Blair, to Lady Gaga. Blair was listed as a producer and/or writer on several of the tracks on Lady Gaga's 2011 Born This Way album, on which “Judas” appeared. Blair claimed he never heard Francescatti's song. But District Judge Marvin E. Aspen noted: “Whether there exists a direct nexus between Gaynor and Gaga depends on the credibility of the witnesses.” The district judge went on to determine that “regardless of the degree of access in this case, the substantial similarity analysis must be conducted independently.” Judge Aspen agreed with Francescatti that expert testimony can be used to determine whether there had been copying, “Given how increasingly complex the music industry has become” with the use of computers to create music. But then applying the ordinary observer test to determine the ultimate issue of the “total concept and feel” of the songs, Judge Aspen concluded in favor of the defendants, “Here, there is not a unique combination of elements ' the similar titles and [] four 16th notes ' such that they give rise to the songs' similar total concept and feel.”

Editor's Note: As our July issue was going to press, the U.S. Supreme Court issued its ruling in American Broadcasting Cos. v. Aereo Inc. , 13-461. The court found that Aereo's retransmission of TV programs to its customers via small, Internet enabled antennas the customers use was an unauthorized public performance of the networks' copyrights. See our coverage of the ruling at http://bit.ly/1jOPiDO.

Stan Soocher'is Editor-in-Chief of'Entertainment Law & Finance'and a tenured Associate Professor of Music & Entertainment Industry Studies at the University of Colorado's Denver Campus. He can be reached at'[email protected]'or via'www.stansoocher.com.

Adding New Story Elements Didn't Keep Sherlock Homes Characters Under Copyright in Later Stories

The U.S. Court of Appeals for the Seventh Circuit decided that the original characters in pre-1923 Sherlock Holmes works by Sir Arthur Conan Doyle are in the public domain, though additional elements were added to the characters in the stories still under copyright. Klinger v. Conan Doyle Estate Ltd., 14-1128.

Leslie S. Klinger, co-editor of the short stories anthology In the Company of Sherlock Holmes , filed suit for a declaration that pre-1923 character and story elements in Doyle's last ten Sherlock Holmes stories, published between 1923 and 1927, were also in the public domain. The estate argued, however, that no one work was a separate “derivative work” from the others, so the Holmes and Dr. Watson characters continued to have copyright protection.

Prior to this case, the Seventh Circuit had yet to decide whether literary sequels or series constituted derivative works. The U.S. District Court for the Northern District of Illinois, in which Klinger filed his declaratory action, granted summary for the plaintiff on this issue, by finding “the Ten Stories are derivative works of Sir Arthur Conan Doyle's first Sherlock Holmes story.” Specifically, Chief U.S. District Judge Rub'n Castillo observed: “The Post-1923 Story Elements, Dr. Watson's second wife and his athletic background, as well as Sherlock Holmes' retirement, are a character, character trait, and a storyline, respectively. These elements originated in the copyrighted Ten Stories.”

Affirming, Circuit Judge Richard Posner wrote for the appeals court: “From the outset of the series of Arthur Conan Doyle stories and novels that began in 1887 Holmes and Watson were distinctive characters and therefore copyrightable. They were 'incomplete' only in the sense that Doyle might want to (and later did) add additional features to their portrayals. The resulting somewhat altered characters were derivative works, the additional features of which that were added in the ten late stories being protected by the copyrights on those stories. The alterations do not revive the expired copyrights on the original characters.”

Illinois Federal Court Agrees with Copyright Infringement Plaintiff that Expert Can be Used To Help Explain Complexities of Music Created on Computers, But Rules for Defendant Lady Gaga

The U.S. District Court for the Northern District of Illinois decided that a songwriter raised a triable issue of fact as to whether defendant Lady Gaga had a reasonable possibility of access to the plaintiff's song “Juda.” But the district court went to grant summary judgment for Lady Gaga and her co-defendants by finding no substantial similarity between “Juda” and Gaga's song “Judas.” Francescatti v. Germanotta , 11 CV 5270. Rebecca Francescatti had made a recording of her song in 2005 with defendant Brian Gaynor. In 2010, Gaynor's production partner Brian Lee introduced their third partner, DJ Paul Blair, to Lady Gaga. Blair was listed as a producer and/or writer on several of the tracks on Lady Gaga's 2011 Born This Way album, on which “Judas” appeared. Blair claimed he never heard Francescatti's song. But District Judge Marvin E. Aspen noted: “Whether there exists a direct nexus between Gaynor and Gaga depends on the credibility of the witnesses.” The district judge went on to determine that “regardless of the degree of access in this case, the substantial similarity analysis must be conducted independently.” Judge Aspen agreed with Francescatti that expert testimony can be used to determine whether there had been copying, “Given how increasingly complex the music industry has become” with the use of computers to create music. But then applying the ordinary observer test to determine the ultimate issue of the “total concept and feel” of the songs, Judge Aspen concluded in favor of the defendants, “Here, there is not a unique combination of elements ' the similar titles and [] four 16th notes ' such that they give rise to the songs' similar total concept and feel.”

Editor's Note: As our July issue was going to press, the U.S. Supreme Court issued its ruling in American Broadcasting Cos. v. Aereo Inc. , 13-461. The court found that Aereo's retransmission of TV programs to its customers via small, Internet enabled antennas the customers use was an unauthorized public performance of the networks' copyrights. See our coverage of the ruling at http://bit.ly/1jOPiDO.

Stan Soocher'is Editor-in-Chief of'Entertainment Law & Finance'and a tenured Associate Professor of Music & Entertainment Industry Studies at the University of Colorado's Denver Campus. He can be reached at'[email protected]'or via'www.stansoocher.com.