7th Circuit Upholds the Public Domain of Holmes

The U.S. Court of Appeals for the 7th Circuit upheld a lower court's ruling that the characters of Sherlock Holmes and Dr. Watson -- two of literature's most iconic and enduring fictional crime fighters -- are in the public domain, and the estate of their creator cannot legally claim the exclusive licensing rights to them.

As was blogged on an earlier date, the case came up as a result of the estate of Arthur Conan Doyle demanding licensing fees from a contemporary author of a book featuring new stories involving Holmes and Watson.  The author, Leslie Klinger, challenged the estate in federal court, claiming the characters were creations of the 19th century, and any copyright on them long since expired.  The lower court ruled in Mr. Klinger's favor, but the estate appealed the decision.

In its opinion, the 7th Circuit agreed that the copyrights on the characters of Holmes and Watson exist no more.  Just as I opined in my earlier blog post, the court noted that it could not accept the estate's claim that stories written by A.C. Doyle after 1922 reinvigorated the copyright on the characters and started the clock ticking all over again.  If that were the case, then characters' copyrights could be maintained in perpetuity simply by writing a new story every so many years.  And that's not what Congress intended by creating a limited copyright duration.

Bye-Bye to D.C.'s Oldest Private Art Gallery

The Corcoran Gallery of Art has been around since 1869 and claims to be Washington, D.C.'s oldest private art gallery.  But its independence is likely coming to an end as it has come to an agreement to merge its collection and affiliated school with George Washington University and the National Gallery of Art.

Court approval is necessary because the agreement isn't exactly in keeping with the Corcoran's charter.  Therefore, to attain approval, a court will have to issue what's called a "cy pres" ruling.  That is, it is basically being asked to rule that the agreement comes as close to attaining the charter's mission as is possible under the circumstances.

According to the Washington Post, financial troubles pushed the Corcoran's board to this decision.

Is That Really the Fake You Bought?

An interesting legal issue arose in a New York court handling a lawsuit in which an art collector sued over the purchase of paintings he now alleges are fakes.

According to the Art Newspaper, the court ruled against the plaintiff based on a "chain of custody" question.  In the judge's mind, the collector couldn't prove that the fakes he possessed were, in fact, forgeries that the defendant sold to him.  In other words, unless you can prove through expert testimony that the fakes are the exact same items as you purchased, you might not be able to prove the seller defrauded you.  After all, reasoned the court, who knows when the forgery actually occurred?

"Act of State" Doctrine Keeps Van Gogh at Yale

Although the United States didn't officially recognize the government of the former Soviet Union until 1933 -- 15 years after the Russian revolution occurred -- a U.S. court recognized the U.S.S.R.'s right to confiscate art as far back as its beginning.

In 1918, the Bolsheviks abolished private property in the new communist state and confiscated the art collection of a Russian collector.  Among the seized works was Van Gogh's painting, The Night Café.  The painting was later sold to an American collector who, in turn, bequeathed it in his will to Yale University.

An heir of the original Russian collector sued in an American court to recover the painting, saying the seizure by the then Soviet government was illegal.  However, the court ruled that it couldn't even consider the legality because of the “act of state” doctrine.  That doctrine prohibits U.S. courts from hearing cases challenging acts done by a recognised foreign government within its own territory.

No Time Like the Present to Sue

Just in case you were looking for an example of how far back you have to reach to appropriate a piece of intellectual property without worrying whether you might get sued for copyright infringement, a lawsuit filed in California makes a timely point.

Harold Lloyd Entertainment, Inc., is suing Cupecoy Home Fashion, Inc., for what the plaintiff says is copyright infringement of an image from a silent movie released in 1923.  Had the film been released a year earlier, it would be in the public domain under current U.S. copyright law.  But, as it is, the film is still under copyright protection -- at least until 2018.

The movie is Safety Last!, perhaps the most famous film made by the comic actor Harold Lloyd.  The iconic image derived from it is that of Mr. Lloyd hanging precariously from the minute hand of a giant clock mounted to the outside of a tall building.

Even if you've never seen the film, you might have seen a still image of that classic moment from it.  Or you might remember similar moments in the later films, Back to the Future or Hugo.  According to reports, the producers of both of those films paid fees to Harold Lloyd Entertainment for the privilege of incorporating those clock-hanging scenes into their movies.

In the case of the current lawsuit, the plaintiff charges that Cupecoy Home Fashion utilized a strikingly similar image in its advertising but didn't get permission from Harold Lloyd Entertainment to do so.  That resulted in litigation.

Will the court rule in favor of the plaintiff or the defendant?  Well...wait for it...only time will tell.