Are Sherlock Holmes characters and story elements copyrighted? Reply

A lawsuit over the FREE USE of the Sherlock Holmes characters and story elements prompted the US District Court in the Northern District of Illinois to do some detective work into the famous, fictional detective to determine whether Holmes, other characters and story elements of Sir Arthur Conan Doyle’s books and stories had entered into the public domain.

The lawsuit, Klinger v. Conan Doyle Estate, raises two interesting copyright questions:  1) what are the copyrightable elements of a literary work; and 2) when do copyrightable elements of a literary work enter the public domain and become available for free public use.

As a bit of background info, Sir Arthur Conan Doyle authored four novels and 56 short stories featuring Sherlock Holmes and Dr. Watson and published these in the US over a span of 30 years (from 1890 – 1926). As one might expect, new characters and plot elements were introduced in the novels and short stories over time.  Hint: these details are critical to the court’s analysis of the copyright questions raised in the case.

QUESTION 1: Copyrightable Elements of a Literary Work.  The court held that copyright protection extends to characters, character traits, and storyline because these are copyrightable “increments of expression.”  By contrast, the court reiterated a general tenant of US copyright law that “ideas, plots, dramatic situations and events” are not elements in a literary work that are protected by copyright.

QUESTION 2: When Do Copyrightable Elements of Sir Author Conan Doyle’s Literary Works Enter the Public Domain and Become Available For Free Public Use?  The short answer is that his works published prior to 1923 are in the public domain.  Since Sir Author Conan Doyle published works featuring Sherlock Holmes and Dr. Watson both before and after 1923, the court analyzed the publication dates of the works and the introduction of various copyrightable “increments of expression” (including characters, character traits and storyline) to determine which were published pre-1923 and post-1923.  Those published pre-1923 are in the public domain and those published post-1923 are still protected by copyright.

Interestingly, some of the post-1923 characters, character traits and storylines that were at issue in the lawsuit and held by the court to be still protected by copyright are: 1) Dr. Watson’s second wife (introduced in 1924); 2) Dr Watson’s background as an athlete (introduced in 1924); 3) and Sherlock Holmes’ retirement from his detective agency (introduced in 1926).

Only 10 of Sir Author Conan Doyle’s works featuring Sherlock Holmes and Dr. Watson were published in the US post-1923 and are still covered by copyright protection.  The 50 earlier works are in the public domain, which means that “increments of expression” including characters, character traits and storyline (most notably Sherlock Holmes and Dr. Watson) are available for the public to use for free without a license.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

This summary is based on the Memorandum Opinion and Order issued by the United States District Court for the Northern District of Illinois in a ruling on the plaintiff, Klinger’s, motion for summary judgment against the Conan Doyle Estate.   See also: earlier blog posts on the topic of “public domain,” https://iplegalfreebies.wordpress.com/category/public-domain/; other copyright and public domain resources, http://www.copyright.gov, http://copyright.cornell.edu/resources/publicdomain.cfm, http://creativecommons.org/publicdomain/; @iplegalfreebies and www.kasterlegal.com.

Video Parody on Coca-Cola’s Soda-Guzzling Polar Bears Highlights Gruesome Health Consequences Reply

http://www.cspinet.org

A thought provoking video parody has been released by The Center for Science in Public Interest to fuel its longstanding campaign to reduce the consumption of soda and other sugary drinks.  The video parodies the soda-guzzling polar bears featured in Coca-Cola commercials by featuring a polar bear family (The Real Bears) that suffer from the unhappy health consequences of consuming too much soda including: weight gain, diabetes, tooth decay, obesity, impotence and amputation.

The synopsis of The Real Bears video from the website of The Center for Science in Public Interest:

The Real Bears tells the story of a family of polar bears who, even in their distant Arctic environment, are not immune from sunny marketing messages from Big Soda. The whole family is consuming too much soda… and is experiencing everything from weight gain to tooth decay to problems in the bedroom. Only after recuperating from a terrifying visit to Doc Fox’s chilly surgical suite does Pop Bear come to realize that soda has brought nothing but sadness to his family. In the film’s stirring dénouement, he leads his family to reclaim their health—and their happiness.

This video of The Real Bears is an interesting example of a parody, which is one type of fair use exception to the exclusive rights of a copyright holder.  I don’t know that any challenges or copyright infringement claims have been made against “The Real Bears” video; however, the video provides an interesting opportunity to review the legal standards for a parody.

When a court evaluates if video, or other work, is entitled to fair-use protection as a parody they analyze the four fair-use factors codified in Section 107 of the U.S. Copyright Act.  Here are the four fair-use factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

When assessing whether a parody is entitled to fair-use protection under the U.S. Copyright Act, all four of the factors are to be analyzed and the results weighed together in light of the purposes of copyright.  The purposes of copyright balance the exclusive rights of copyright owners and rights of the public including free speech, criticism and commentary of a work.

FILM CREDITS: The film features an original song, Sugar, by Grammy-award winning singer-songwriter Jason Mraz which he wrote and performed with the San Diego-based rapper MC Flow.

HEALTH FACT ABOUT SODA CONSUMPTION listed on the CSPI website: Soda and sugary drinks are the biggest single source of calories in the American diet, accounting for about 7 percent.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

See also, The Real Bears video at http://therealbears.org/#video; the website for The Center for Science in Public Interest at http://cspinet.org/new/201210101.html; the US Copyright Act at www.copyright.gov/title17/92chap1.html; another blog post on parody; @iplegalfreebies and www.kasterlegal.com.

“The Wind Done Gone” a famous parody of “Gone With The Wind” Reply

Criticism of a copyrighted work (which parody is one variety) is often a protected form of free speech. If a parody is challenged as being a copyright infringement, courts will conduct a “fair use” evaluation to determine if the parody is a permissible fair use for the purpose of criticism, commentary and preservation of free speech.

Parody is generally a mocking criticism of another well known work. As you might have guessed, The Wind Done Gone is a parody of the famous American novel, Gone With The Wind. In The Wind Done Gone the plot follows the story line of Gone With The Wind but is told from the viewpoint of Cynara, a mulatto salve on the plantation who is Scarlett’s half sister and Rhett’s mistress. Cynara ends up being freed and continuing her life off the plantation.

When The Wind Done Gone was published, a trustee for Mitchell (the author of Gone With The Wind) filed a law suit claiming copyright infringement and seeking an injunction to prevent the publication and distribution of The Wind Done Gone. The district court granted the injunction, which was appealed. The appellate court issued an order vacating the injunction on the grounds that it was unconstitutional and issued a comprehensive opinion in 2001 which held that The Wind Done Gone was a fair use parody of the novel, Gone With The Wind.

Here a few interesting quotes from the appellate court’s opinion:

[Note that the court uses abbreviations for the titles of both novels. The Wind Done Gone (TWDG) and Gone With The Wind (GWTW)]

It is hard to imagine how Randall [the author of TWDG] could have specifically criticized GWTW without depending heavily upon copyrighted elements of that book. A parody is a work that seeks to comment upon or criticize another work by appropriating elements of the original. “Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination.” Campbell, 510 U.S. at 580-81, 114 S. Ct. at 1172. Thus, Randall has fully employed those conscripted elements from GWTW to make war against it. Her work, TWDG, reflects transformative value because it “can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.” Campbell, 510 U.S. at 579, 114 S. Ct. at 1171. [**46]

[Note that characters in the two novels have different names which the court references in this next quote. Scarlett is “Other” in TWDG; Rhett is “R.B.” in TWDG; Gerald is “Planter” in TWDG and Pork is “Garlic”]

There are numerous instances in which TWDG appropriates elements of GWTW and then transforms them for the purpose of commentary. TWDG uses several of GWTW’s most famous lines, but vests them with a completely new significance. For example, the final lines of GWTW, “Tomorrow, I’ll think of some way to get him back. After all, tomorrow is another day,” are transformed in TWDG into “For all those we love for whom tomorrow will not be another day, we send the sweet prayer of resting in peace.” Another such recasting is Rhett’s famous quip to Scarlett as he left her in GWTW, “My dear, I don’t give a damn.” In TWDG, the repetition of this line (which is paraphrased) changes the reader’s perception of Rhett/R.B.–and of black-white relations–because he has left Scarlett/Other for Cynara, a former slave. Another clear instance in which a memorable scene from GWTW is taken primarily for the purpose of parody is Gerald/Planter’s acquisition of Pork/Garlic. In GWTW, Gerald won Pork in a card game with a man from St. Simons Island. In TWDG, Planter wins Garlic in a card game with a man from St. Simons Island, but Garlic, far from being the passive “chattel” in GWTW, is portrayed as being smarter than either white character by orchestrating the outcome of the card game and determining his own fate. There are many more such transformative uses of elements of GWTW in TWDG. [**46-47]

The concurring opinion sums it up by stating that The Wind Done Gone is a “book that seeks to rebut a classic novel’s particular perspective on the Civil War and slavery…. its main aim being to shatter Gone With the Wind‘s window on life in the antebellum and Civil War South.”

Arguably exposure to the perspective offered on Civil War and slavery by The Wind Done Gone is a benefit of the First Amendment. Parody and the fair use exception are interesting components of US Copyright Law that highlight the balancing of a copyright owner’s exclusive rights and freedom of speech.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

See, “Suntrust v. Houghton Mifflin Co., 268 F.3d 1257 (U.S. App. 2001) and Suntrust v. Houghton Mifflin Co.,252 F.3d 1165 (11th Cir. 2001); US Copyright Act § 107 on Fair Use at http://www.copyright.gov/title17/92chap1.html#107 and http://www.copyright.gov/fls/fl102.html; The Wind Done Gone at http://www.amazon.com/dp/B0015MLOYI and Gone With The Wind at http://www.amazon.com/Gone-Wind-Margaret-Mitchell/dp/1416548947; @iplegalfreebies and www.kasterlegal.com.

An interesting fact mentioned in the court’s opinion issued in 2001 is that, “since its publication in 1936, Gone With The Wind has become one of the best-selling books in the world, second in sales only to the Bible.”

Looking back at the top posts on IP Legal Freebies Reply

As we kick off a new year, let’s take a look at the top posts on IP LEGAL FREEBIES:

1. Copyright Law: Using quotes from someone else in your book, blog or website – Using Dr. Martin Luther King Junior’s famous ‘I Have a Dream’ speech as an example of a copyrighted work filled with famous quotes… we take a look at the fair use doctrine and how evaluations are made regarding use of copyrighted content.
2. Music Royalties will start being paid for plays on YouTube – In 2012 YouTube started paying royalties for plays on their website.
3. How to write a © copyright notice and why to use it – Writing a copyright notice on your original work is free and easy to do. (if you aren’t already in the habit of doing this, make it a new years resolution!)
4. Copyright Law: Using quotes from someone else in your book, blog or website (part two) – Remember that the HEART of a work is heavily protected by copyright law.
5. Copyright is valuable – ‘The Birthday Song’ earns $2 Million a year in royalties – We all know it… it’s only eight measures long, spans an octave and was written for children …but it’s a big money maker.
6. Understand How You’re Getting Paid – ROYALTIES on GROSS vs NET REVENUE and an ADVANCE – Seeing these words in a contract or agreement will impact payment… become familiar with the meaning of these terms.
7. ‘NAME Brand’ – Using your name as a brand and trademark – Paul Revere may have been the first American entrepreneur to use his name to brand his products. Are you considering it too?

Happy New Year! Thank you for reading. Wishing you all the best with your creative and entrepreneurial endeavors.

For the latest post see: https://iplegalfreebies.wordpress.com and www.kasterlegal.com; @iplegalfreebies and www.kasterlegal.com.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

 

Recording and posting concert clips: what’s legal… what’s not 6

Just because it is easy to use your phone to record a clip at concert doesn’t give you the right to do very much with the recorded clip. There are multiple sets of legal rights at play in every concert performance which include:

• Copyright in the music compositions and lyrics (often controlled by the publisher or sometimes the artist)
• Copyright in the performance (often controlled by the label)
• Trademarks of the band, club or venue
• Band’s right of publicity
• Contractual rights granting you the privilege to attend the performance (often on the ticket stub, or posted signs at the venue, or the terms and conditions of a website)
• License granted by ASCAP or other rights manager to the club or venue for the performance.

Each of these rights gives the holder a monopoly to do certain things or exclude others from doing certain things. Excluding others (ie you with the recording device) can be taken seriously by all the rights holders. For example, club or venue owners can exclude others from recording on their premises. This means they can confiscate your phone until the end of the performance or ask you to leave if you are caught recording a clip of the concert.

Technically speaking, recording a clip of a concert for your own personal use is probably considered fair use. If you post the recoded clip to a website, chances are that one of the rights holders listed above will contact the website and request that the clip be taken down. If this happens, the clip will come down and you may forfeit your right to access or use the website where you posted the infringing clip.

Rights holders generally try to maintain a balance when it comes to enforcing their rights; since, they don’t want to alienate their fans and patrons. Although, given the history of how aggressively the music industry went after folks who were targeted for illegally downloading music… this could change.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

See also: Other posts on music copyright at https://iplegalfreebies.wordpress.com/category/c-o-p-y-r-i-g-h-t/copyright-music-copyright/; Music Law 101: Legal Issues Surrounding the Recording and Posting of Concerts, by R. Friedberg; @iplegalfreebies and www.kasterlegal.com.

breathe easy… in any Hatha Yoga sequence Reply

Following up on a post last month on a Hot Yoga Copyright Dispute… launched by Bikram Yoga to defend copyrights held in a sequence of 26 Hatha Yoga postures… The US Copyright Office has weighed in on the court proceedings and issued a letter stating that a Hatha Yoga sequence is NOT granted copyright as a work of choreography.

An excerpt from the Defendant’s legal document submitted to the US District Court in California, quoting correspondence from the US Copyright office:

“..[T]he Choudhury Yoga Sequence is legally invalid because the Copyright Office has determined that yoga is not protected as choreography. According to a December 7, 2011 letter to Defendants from Laura Lee Fischer, Acting Chief of the Performing Arts Division of the Copyright Office, the Copyright Office previously “took the position that although functional physical movements did not represent the type of authorship which Congress intended to be protected under the copyright law, [the Copyright Office] could register the selection and ordering of public domain exercises.” However, the Copyright Office recently reevaluated this position. “The Registration Program of the Copyright Office reviewed the legislative history relating to section l02(a) of the copyright law, and in conjunction with senior management, determined that exercises, including yoga exercises, do not constitute the subject matter that Congress intended to protect as choreography. Thus, we will not register such exercises (including yoga movements), whether described as exercises or as selection and ordering of movements.” [From page 10-11 of Defendant’s Answer to the Complaint dated 12/9/2011. In the case: Bikram’s Yoga College of India L.P. v. Yoga to the People, Inc., 11-cv-07998, U.S. District Court, Central District of California (Los Angeles).  click here for the court document ]

You can breathe easy… in any Hatha Yoga sequence of your choice. Although, it appears that this lawsuit is still alive and moving forward since there are other non-copyright elements in the case.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

For more information: http://wp.me/p10nNq-fE on HOT YOGA dispute; http://www.dailybusinessreview.com/PubArticleDBR.jsp?id=1323647402672&slreturn=1; http://dockets.justia.com and http://www.yogatruth.org/; @iplegalfreebies and www.kasterlegal.com.

 

Hot Yoga Copyright Dispute 3

Evidently Bikram Yoga is suing Yoga to the People (another Hatha Yoga establishment) for copying a sequence of 26 Hatha Yoga postures performed in a hot room (105 degrees) …claiming a violation US copyright law.

Is this Copyright Infringement? Could be if the postures or the “routine of postures” are original. (It is possible to obtain copyright protection for choreography.) Although proving that a sequence of Hatha Yoga postures is original could be a challenge; since, Hatha Yoga is an ancient spiritual tradition with roots in India.

Interestingly, over the last decade, the Indian government has launched aggressive ‘traditional knowledge’ campaigns seeking to recapture ancient traditional knowledge, including Yoga, Ayurveda, and Homoeopathy practices that have been granted intellectual property protection in other counties. For example, several patents have been revoked in the US and the EU for turmeric, basmati and neem tree extracts because the patents were for traditional uses that are mentioned in numerous ancient texts. (Patent and copyright protection are similar ~ they both require originality. Patent law requires “novelty” for legal protection and enforcement… and copyright law requires “originality.”)

It will be interesting to see how flexible the US courts and the Indian Government are with Bikram’s allegation of copyright ownership and infringement of the “Hot Yoga” sequence at issue.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

For more information: 12/9/2011 UPDATE http://wp.me/p10nNq-fT from the US Copyright Office; India’s Traditional Knowledge Digital Library: http://www.tkdl.res.in/tkdl/langdefault/common/Abouttkdl.asp?GL=Eng; The WIPO Creative Heritage Project: http://www.wipo.int/freepublications/en/tk/934/wipo_pub_l934tch.pdf; and Bikram’s US Copyright registration numbers: TX0005259325, TX0006555860, TX0005624003, TX0000179160, TXu001323218, TX0005499662, TXu001022657, TXu000934417, PA0001053335; @iplegalfreebies and www.kasterlegal.com

Making ‘Stormtroopers’ in your basement? (gotta look at that basement) 2

In a galaxy not so far away… (the United Kingdom under the rule of HRH)… the original designer and prop maker of the Star Wars stormtrooper costume continues to make replicas of the iconic stormtrooper in his basement and sell them over the internet.  This basement stormtrooper-production-line led to a legal battle in the UK’s highest court.  Lucasfilms filed a lawsuit for copyright violation, in the hopes of shutting down the basement production.

The court ruled in favor of the basement stormtrooper-production since UK copyright law offers a short term of copyright protection for ‘props’ and that period of protection had expired.  (Interestingly, the same stormtrooper costumes are covered by a much longer term of copyright protection in the UK if the court had found them to be works of sculpture instead of classified as props.  Here in United States, if the stormtroopers were being produced in a basement on US soil… it is likely that Lucasfilms would have prevailed because, the US copyright law offers a much longer term of copyright protection regardless of the classification of the copyrightable work as a sculpture or prop.)  Since the stormtrooper costumes are still under copyright protection in the US, damages may have to be paid to Lucasfilms for any costumes that were sold here in the US.

Copyright laws and the term of copyright protection vary from country to country.

(I gotta tell ya, that I visited the UK courtroom while this case was being tried and there were stormtroopers set up all over the place.  The combination of wigs, robes, courtroom formalities and stormtroopers felt like another dimension… straight out of Star Wars.)

The case is: Lucasfilm v. Ainsworth, No. [2011] UKSC 39, U.K. Supreme Court.  See also, http://www.supremecourt.gov.uk/news/latest-judgments.html; @iplegalfreebies and www.kasterlegal.com.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

 

Copying another artist’s work into a New Medium can violate copyright 3

The idea behind a piece of artwork is not protected by copyright.  However, a near replica of an artist’s work in different medium can be a copyright violation if the new work closely copies a copyright protected work.  What this means is that being inspired by an idea of another contemporary artist to recreate your own artwork from scratch is…100% legit.  For example, if a famous photograph of the pyramids inspires you to fly to Egypt and try to recreate the exact same photo to display and sell in a gallery… there is no copyright violation.  However, it is different if you use a copy of a famous photograph of a pyramid to paint a replica of the photograph.  Painting a copy of a photograph changes the medium of the artwork, but it can often still be a copyright violation of the copied work.

Here are a few examples of instances when copying someone else’s artwork into a new medium could be a copyright violation of the original work:

• Photographing a sculpture… for use on a postage stamp
• Making a painting of another artist’s photograph… to display in a gallery show
• Making a campaign poster out of another artist’s photograph… to sell and raise money
• Making a sculpture of another artist’s photograph of a sad kid in a costume… to display and sell
• Recreating another artist’s painting in peanut butter and jelly and photographing the PB&J  rendition… to display and sell

Obviously, there are many unique facts and factors to consider in each case… and many of these types of challenges settle before a court issues a final ruling.  However by the time the parties begin negotiating a settlement, the stakes are higher and the alleged infringer generally ends up paying much more than it would have cost to secure a license at the outset.

The solution is to get a license from the original artist to make a derivative work.  (Trying to deny or cover-up your source material is often unsuccessful and can cost a lot more $$ in the end.)

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com.

Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992)( The infringers fair use defense was denied); Gaylord v. United States, 595 F.3d 1364 (Fed. Cir. 2010); Fairey v Associated Press; alleged infringement between A.Brown and littlewhitehead; alleged infringement between Burdeny and Leong; NY Times article 9/28/11, questioning originality of Dylan paintings at the Gagosian; @iplegalfreebies and www.kasterlegal.com.

Cooking up Copyright – (cookbooks and recipes) 3

FACT: A recipe is not copyrightable

FACT: A cookbook is copyrightable

What does this mean?  It means that while a recipe itself (ie the mere listing of ingredients) is not protectable by copyright, other original elements embodied in a cookbook can be protected by copyright registration.  For example: the selection of recipes, layout, descriptions, illustrations, cover artwork, explanations and accompanying text are all elements of a cookbook that can be protected by copyright registration.

Most cookbooks contain a substantial amount of content that can be protected by copyright, even though the actual listing of ingredients is not copyrightable.

IN SUMMARY: register cookbooks for copyright protection… and keep secret ingredients…secret.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

for more from the US Copyright Office on recipes and cookbooks –>http://www.copyright.gov/fls/fl122.html  and for more on how to register your cookbook for copyright registration for $35 –>  https://iplegalfreebies.wordpress.com/category/copyright-for-35/.  @iplegalfreebies and www.kasterlegal.com.