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  • Writer's pictureCassandra L. Wilkinson

Sherlock Wars: The Appeals Court Strikes Back

It has been a hot summer for intellectual property law geeks. The season opened with a storm accusing the Washington NFL team of using a derogatory term for its team name. The Trademark Trial and Appeal Board ruled that it was and canceled the relevant marks. Lightning and thunder ensued. The summer cooled at the end with an actual debate over ownership of a photo taken by a monkey. Yes, a photo taken by a monkey was debated by serious legal minds. Suddenly, David Letterman’s infamous monkeycam doesn’t seem so silly. If only King Kong had taken a GoPro® camera with him to the top of the Empire State building? But the real heat of the summer was the ongoing mystery of the Sherlock Holmes copyright.
In June, the United States Court of Appeals for the Seventh Circuit rejected a rather unique argument from Arthur Conan Doyle Estate’s appeal. To use a sports metaphor, the estate was trying to “manage the clock” in regard to when the Sherlock Holmes stories and characters entered the public domain. The argument was that the characters weren’t complete and fully developed until the last stories were published by Doyle. A ruling favoring that argument would have altered when the clock/calendar started for any character to enter the public domain. Judge Richard Posner of the Appeals Court later called the appeal quixotic.
In August, Judge Posner wrote a sequel to the June judgment and this sequel is closer to Empire Strikes Back than it is Bad Boys 2. The sequel concerns the money owed the plaintiff, author Leslie S. Klinger. Judge Posner awarded Klinger over $30,000 in legal fees and chastised the Doyle estate’s rather mob-like business strategy. Posner said the estate’s strategy of encouraging booksellers to boycott Klinger’s book (and potentially others) was anti-competitive, a violation of anti-trust laws, and extortion, especially since the Doyle estate doesn’t have a copyright leg to stand on. Luckily, Amazon didn’t end up in bed with a horse head when it was asked to boycott the plaintiff’s book by Doyle’s estate.
It doesn’t take Sherlock or even Inspector Gadget to figure out where this case is going. Despite the stern wording of the appeal court’s judgment, the Arthur Conan Doyle Estate may appeal to the Supreme Court using the same argument. Whether or not the American public will be privileged to hear the Supreme Court justices discuss the merits of the Hounds of the Baskervilles is yet to be determined. It certainly wouldn’t be as entertaining as hearing Justice Alito and Justice Kagan debate monkey photos.
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