The Artful Jurist

Author J.K. Rowling – of “Harry Potter” fame – is being sued on a charge that her Harry Potter books constitute copyright infringement. The estate of the late Adrian Jacobs claims that Ms. Rowling swiped substantial portions of Mr. Jacobs’ book, The Adventures of Willy the Wizard. Mr. Jacobs died in 1997.

The Jacobs estate is also suing Ms. Rowling’s publisher, Bloomsbury Publishing.

The reclusive author of The Catcher in the Rye, J.D. Salinger, has died at age 91. The literary world bids farewell to one of the 20th century's most notable and eccentric writers.

Now we wait for the other shoe to drop.

The "shoe" to which I'm referring is the question over what is now to become of Mr. Salinger's long-coveted intellectual property. For years there have been rumors that he has written various stories that he locked away and wouldn't permit anyone to see -- let alone publish -- while he was alive. And then there were those who longed to turn Catcher, his iconic novel of a forlorn youth, into a movie. This, too, Mr. Salinger refused to allow while he was alive.

Well, now Mr. Salinger is no longer living and no longer here to guard the proverbial castle. And so opens a new chapter regarding his intellectual property...and what is to become of it.

As is always the case, our creations can outlive us for years. (Just ask Homer or Aristophanes.) But so, too, can copyright protection survive the mortals who created the intellectual properties it protects. Under current American law, copyright lasts for the life of the creator plus 70 years. So Mr. Salinger's copyrights are still very much intact.

Whether allegedly hidden stories are suddenly sprung from the vault, or Catcher becomes the next big Hollywood film project, is something that will depend entirely on whoever is now in control of Mr. Salinger's intellectual property. Sometimes it falls directly to heirs or will beneficiaries. Sometimes control is devised to a person designated as a literary representative of the estate. Either way, it's a whole new chapter for the works of Mr. Salinger.

One blog reader was inspired to ask a follow-up question regarding the recent post on the copyright of Arthur Conan Doyle's iconic character, Sherlock Holmes. She asked...

Would this have to have been done by Doyle himself, or could someone else pick it up later? And that leads to the whole question of who can copyright work? Just the author, her publisher, or ....?

My response is this: Initially, it was probably Doyle who applied for the copyright, or it was Doyle's publisher applying for it in Doyle's name. The laws were different then, and, of course, we're dealing with a different country's copyright laws when we're talking about the United Kingdom. So I can't claim to know exactly what the rules were there and then.

What I can tell you is that, under the current American law, the copyright automatically belongs to the author (unless it's a work made for hire). But the author can also assign the copyright to anyone. So there are lots of situations where the official registry is in the name of someone or something other than the author.

That said, let's also keep in mind that it's not the norm for a character to achieve copyright protection. Ordinarily, a character is excluded from that. Only in very unique cases, where the character possesses such distinctive traits as to separate it from all others is there a reasonable opportunity that it could be copyrighted. Comic book superheroes are one example of such characters.

Considering the plethora of commercials hyping it, you’ve probably heard that there’s a new Sherlock Holmes movie (appropriately titled Sherlock Holmes) coming out on Christmas day. Toss this one into the huge collection of film versions of the noted fictional detective. Was there ever a franchise more lucrative than Arthur Conan Doyle’s iconic sleuth? Just check out this web site if you’re curious how many different actors have played the role over the years.

But here’s a legal question concerning the famous Mr. Holmes. Was the character of Holmes copyrighted? The stories most definitely were, and my understanding is that, although the copyright has expired on most of Sir Arthur’s works (he died in 1930), at least one of his books is still protected under American copyright law. Still, that doesn’t answer the question of whether his most famous character was copyrighted.

Traditionally, you can’t copyright a character. You can only copyright the specific expression of that character’s participation in a creative work. But the courts have found some occasions where a character, itself, is so unique in appearance and traits as to be copyrightable in and of itself. Most often, those copyrightable characters tend to be cartoons and/or superheroes. Sherlock Holmes had extraordinary abilities, but he wasn’t Superman.

Still, as I perused the web in search of an answer, I found more than a couple of references to the ownership of the copyright to the character of, rather than the stories about, Sherlock Holmes. I don’t know if they’re accurate accounts. But I’d be curious to know if someone’s collecting a royalty check on just the title character in the new movie.

More than 120 years after first making his appearance, the master sleuth of Baker Street still provides a good mystery.

Corri Fetman isn't your typical straight-laced, button-down lawyer. In fact she gained substantial notoriety when she unlaced and unbuttoned to pose nude for Playboy magazine, a publication in which she also used to write a legal advice colum titled "Lawyer of Love."

Well, now she's got a legal issue of her own to deal with. Playboy is suing the Chicago-based divorce lawyer over the "Lawyer of Love" trademark.

According to a Chicago Tribune blog, Fetman attempted to register the "Lawyer of Love" name with the U.S. Patent and Trademark Office. Playboy says it owns the intellectual property rights to that title and Ms. Fetman is just trying to capitalize on the Playboy name.

According to the blog, Ms. Fetman was a freelance writer when she wrote her column for Playboy. Freelancers, like other independent contractors, have different intellectual property laws that apply to them as compared to employees of a company. Who owns "Lawyer of Love" may come down to an analysis of both contract language and other matters.