Update on Some Cases and Legal Issues
by John Aquino on 10/15/15
It's been a while.
I want to provide some updates on previous blogs..
After having written a number of blogs on the lawsuit asserting that the character of Sherlock Holmes wasn't protected by copyright, I published a blog on November 25, 2014 stating that the case of the copyright of Sherlock Holmes is closed. And I think it still is. But neither the story nor the lawsuits had ended.
The U.S. District Court for the Northern District of Illinois ruled that because the earlier Sherlock Holmes stories by Sir Arthur Conan Doyle had passed into the public domain, so had the character of Sherlock Holmes. The only exception was that characteristics of Holmes that are portrayed in stories published between 1923 and 1927, which are still covered by copyright, are likewise copyright protected. Those stories portray an older Sherlock Holmes. The U.S. Court of Appeals for the Seventh Circuit affirmed the district court's decision, and awarded the author-plaintiff attorneys fees, and the Supreme Court declined to hear the case.
In June 2015, a movie titled Mr. Holmes about Sherlock Holmes at the end of his life premiered in the UK, with a U.S. release date following in July. But in May, the Sir Arthur Conan Doyle Estate had sued the filmmakers in the U.S. District Court for the District of New Mexico, saying that the older Holmes in the movie was infringing the copyright of the stories about the older Holmes.
On Oct. 9, 2015, the estate announced that it had reached a settlement with filmmakers. So, the older Holmes in movies, and presumably tv and books and other media, apparently can only be portrayed if the Sir Arthur Conan Doyle Estate gives license.
Sing 'Happy Birthday,' It Seems to Be All Right.
In a May 1, 2013 blog, I wrote about a lawsuit challenging the copyright of Warner/Chappell for the song "Happy Birthday." The music company had been asserting the copyright for years, even though some had questioned whether it really owned the copyright and suggested that the lyrics were in the public domain.
The U.S. District Court for the Central District of California on Sept. 23, 2015, held that Warner/Chappell had through a series of agreements made by its predecessor companies in the 1890s, 1930s and 1940 obtained ownership of some arrangements of the music but not of the ownership of the lyrics. The parties have agreed that the music is in the public domain.
The court didn't decide on whether the lyrics are in the public domain. This leaves open the possibility that someone else will show up with a claim of copyright for the lyrics. But since Warner/Chappell has been requiring movies, tv shows and even large gatherings to pay royalties every time someone in the movie or show or at the party sings "Happy Birthday" while having a right that the court said was not valid, it seems unlikely (although not impossible) that such a party would appear now.
If they had the rights, they would have disputed Warner/Chappell themselves rather than waiting for a singer and other who wanted to sing the song without charge to do so, right?
Three's Still Company. On February 25, 2014, I wrote about how playwright David Adjimi sued the owner of the copyright for the television show "Three's Company," asking for a declaratory judgment that his play "3C" didn't infringe the copyright. He did this in response to a cease-and-desist order from the copyright owner, demanding that he stop further performances of the play.
This struck me as an unusual lawsuit built around the legal concept that you can't copyright an idea. Usually, the issue comes up when an author sues the publisher of a successful book or the producers of a successful movie for copyright infringement, saying that the book or movie had been based on an unfinished manuscript he had given them or an idea he had pitched. The result is usually that court finds that between the author's work and the book or movie there is perhaps a resemblance of the basic premise but that otherwise the works are not substantially similar. Here an author was trying to preempt a lawsuit that he felt was sure to come.
Adjimi presented a fair use argument to justify his request for a judgment that he was not infringing the copyright of "Three's Company." He argued that he wasn't affecting the market for the tv show because no one could mistake his dark play for that lighthearted company. He also wrote that he wasn't really taking any amount of material from the tv show except an uncopyrightable idea.
The U.S. District Court for the Southern District of New York found in Adjimi's favor. The court wrote on March 21, 2015 in Adjimi v. DLT Entm't Ltd., S.D.N.Y., No. 1:14-cv-00568-LAP, 3/31/15., "3C'' uses the raw material of 'Three's Company' in the creation of new information, new aesthetics, new insights and new understandings and is the very type of activity that the fair use doctrine intends to protect for the enrichment of society."
And so you still can't exercise copyright protection for just an idea in the U.S.
Copyright 2015 by John T. Aquino
