By Anji Mandavia

Currently pending before the United States District Court for the Northern District of Illinois is a case that will determine whether the Estate of Sir Arthur Conan Doyle has any remaining copyright interest in the iconic character of Sherlock Holmes, and his friend and companion in sleuthing, Dr. John Watson.   

The fictional detective and his sidekick first made their appearances in “A Study in Scarlet,” published in 1887. By 1923, Doyle had written and published some fifty-six short stories and four novels wherein Holmes and Watson solved numerous cases through Holmes’ unique analytic and deductive methods, all the while interacting with various supporting characters, including Scotland Yard’s Detective Lestrade, their landlady Mrs. Hudson, Holmes’ brother Mycroft, and his arch-nemesis Professor Moriarty.   Each of those pre-1923 works is now in the public domain in the United States. Approximately ten Sherlock Holmes stories, published after 1923, remain protected by copyright.

Malibu lawyer, and Sherlock Holmes aficionado, Les Klinger, is the author of numerous books and articles regarding the Sherlock Holmes canon. In 2011, he published, as co-editor, a collection of new short stories by contemporary writers featuring Sherlock Holmes and some of his supporting characters, titled “A Study in Sherlock.” In connection with that publication, the Doyle Estate demanded, and Klinger’s then-publisher paid under protest, a license fee for the use of Holmes and the other characters in the story collection.
Continue Reading Character Copyright — Is Sherlock Holmes in the Public Domain?

By Lisa Y. Wang

In March 2013, pop star Rihanna filed a lawsuit in the United Kingdom against TopShop, the enormously popular fast fashion chain, for using an "unflattering" image of her on one of their t-shirts without her permission (the offending t-shirt can be seen here). Rihanna is claiming £3.5 million in damages (U.S. $5 million). Rihanna alleges that TopShop used the image on the shirt without her permission, and that she is not making any royalties off of the product even though it features her face. She is also particularly upset because the image is very unflattering and the quality of the t-shirts is "poor" stating that "The base image of the first claimant [Rihanna] is of such an unflattering nature that it would not be approved." 

According to some reports, Rihanna has been trying to negotiate with TopShop for almost a year regarding the offending shirt, but they have dismissed complaints from her team and offered her a paltry US $5,000. It is interesting to note, and a smart legal move on TopShop’s part, that the shirt is only sold in TopShop’s United Kingdom locations. The reason TopShop can sell the shirts without paying Rihanna a dime is because of a loophole in the copyright laws in the United Kingdom. The loophole gives photographers ownership rights to an image. In other words, the subject of the image, in this case, Rihanna, does not own the image or its copyright. More important, England does not have strict right of publicity laws like the United States. Traditionally, there has been no protection of the commercial value of one’s persona in England.
Continue Reading A Celebrity’s Right of Publicity

By Anjani Mandavia

The question of what does or does not constitute “fair use” is probably one of the grayest areas of copyright law. But it is an area of heightened interest to those artists who practice what has come to be known as “appropriation art,” that is, art – mainly visual art – that incorporates and utilizes found images and photographs, which are often themselves the subject of copyright. Practitioners of “appropriation art” include sculptor Jeff Koons, graphic artist Barbara Kruger, and, of course, pop artist Andy Warhol. The grand daddy of them all was Marcel Duchamp, who, in the period following World War I, pioneered the concept of “readymades” or “found art.”  Koons, Kruger and Warhol all found themselves on the wrong end of copyright infringement lawsuits for their use of other artists’ copyrighted images in their art work. And if Leonardo Da Vinci had been born a few hundred years later, maybe Duchamp too would have found himself having to defend appropriating Da Vinci’s most famous work – the Mona Lisa – by drawing a mustache and a vulgarity on it, and calling it his own.

When bumping up against the strictures of the Copyright Act, appropriation artists turn to the doctrine of “fair use” as a defense, sometimes successfully, (see Blanch v. Koons 467 F.3d 249 (2d. Cir. 2006)), and other times not (see Rogers v. Koons 960 F.2d 301 (2d. Cir. 1992)). The defense itself is codified in the Copyright Act at Section 107, which sets forth four factors that courts should consider in determining if something is a “fair use” of a copyrighted work, and therefore not subject to an infringement claim: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the use; and (4) the effect on the potential market for the copyrighted work. Although the court’s inquiry is not required to be limited to these four factors, as a practical matter most fair use cases are analyzed within this structure.

In recent years the first statutory factor – the “purpose and character of the use” – has taken on increasing importance, and the inquiry on that topic has been described by the Supreme Court as

whether the new work merely “supersedes the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message[,]. . . in other words, whether and to what extent the new work is transformative. . .

Continue Reading Cariou v. Prince — Still No Real Clarity Regarding “Transformative Use” In Appropriation Art.