Sherlock Holmes and the Case of the Disappearing Copyright

Want to write your own Sherlock Holmes story?  Or even publish your own favorite Sherlock Holmes stories?  Have at it. That's the ruling of the United States Seventh Circuit Court of Appeals, which has held that the copyright on Arthur Conan Doyle's famous detective has lapsed and the characters and stories are now part of the public domain.

Just this week, the United States Supreme Court refused to stay the Seventh Circuit's decision pending the high court's decision on whether to hear the case.

The case arose out of two collection of short stories written by author Leslie Klinger.  The first book, A Study in Sherlock: Stories Inspired by the Sherlock Holmes Canon, was published in 2011 by Random House. Despite Klinger's objection, Random House paid a $5,000 royalty to the Doyle Estate to publish the book.

When Klingler and her new publisher, Pegasus Books, were ready to publish her sequel, In the Company of Sherlock Holmes, they refused to pay the royalty and Doyle's estate sued.  And lost.

The last ten Sherlock Holmes stories remain under copyright protection.  The copyrights on those stories expire between 2018 and 2022.  But the character of Sherlock Holmes, Dr. Watson, Lestrade and Moriarty are no longer under copyright protection -- unless the U.S. Supreme Court takes the case and reverses the Court of Appeals decision, something that is not expected.

For the Seventh Circuit's decision, CLICK HERE.

Note: There has been a paucity of posts on this blog over the past seven or eight months. I have been working on my own writing project, a second novel tentatively titled Deadly Innocence. That novel is now finished, so I hope to be posting on this blog more frequently.  That is, until another writing bug hits me.  -- SMT



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Boobies Bracelet and First Amendment: Case Headed to Supreme Court?

I {heart} Boobies.

I'm sure you've seen those colorful rubber bracelets.  They are used to express support for
Breast Cancer Awareness and the keep-a-breast.org website.

Cute.  Harmless.  They may induce a titter (no pun intended).  But they certainly not lewd and obscene.

Unless you're a student in the Easton Area School District about 60 miles north of Philadelphia. 

In 2010,  the school district banned wearing of the bracelets.  When 12-year-old Kayla Martinez and 13-year-old Brianna Hawk, wore the bracelets to Easton Area Middle School, they were suspended.

The American Civil Liberties Union of Pennsylvania stepped up and went to bat for the girls in court.  The result?  Not surprisingly, the District Court held that the school overstepped its bounds and violated the girls' First Amendment rights.

This past August, the US Third Circuit Court of Appeals unanimously affirmed the lower court decision.

You'd think that would be enough, wouldn't you.  But NOOOOOOOO!

The Easton Area School District is adament that it, not the courts, should determine whether the girls should be allowed to express the support for "the Boobies."  So the School Board, by 7-1 vote, decided to spend local taxpayers money to file an appeal to the United States Supreme Court.  This is despite: (1) First Amendment lawyers say the appeal is a waste of money; and (2) of 10,000 petitions for certiorari filed each year with the Supreme Court, the Court chooses to hear no more than 100.

Tens of thousands of dollars -- all trying to keep students from referencing "boobies".

Maybe if they don't let students wear the bracelets, those teenage boys won't notice the changes in their female classmates.

But if I recall my junior high days, my teachers would have been delighted if the students used the term "boobies" rather than the term that was most commonly used.

The Easton Area School District, located about 60 miles north of Philadelphia, said several years ago that the bracelets, distributed by the Keep A Breast Foundation of Carlsbad, California, were lewd and banned students from wearing them.
Kayla Martinez, then 12, and Brianna Hawk, then 13, defied the ban and wore the bracelets to Easton Area Middle School in 2010. They were suspended.
The girls, with the help of the American Civil Liberties Union of Pennsylvania, then challenged the ban, and after making its way through lower courts, the 3rd U.S. Circuit Court of Appeals agreed with the girls in August. The court said the district didn’t prove the bracelets were lewd or disruptive.

Libraries, Museums, Ebay, Used Book Stores Saved by U.S. Supreme Court

In a technical but important issue of copyright law, the United States Supreme Court in a 6-3 decision held that re-selling text books on Ebay was not a violation of the publisher's copyright.

The much anticipated decision in Kirtsaeng v. John Wiley & Sons upheld the "first purchase" doctrine.  Immediately it drew praised from libraries, museums retailers, and marketers such as Ebay, all of which filed briefs in support of Kirtsaeng.  The decision was blasted by publishers and the software industry which view it as a substantial subtraction for the bundle of their intellectual property rights.

Kirtsaeng, a math student from Thailand, bought textbooks in Asia where there were sold for much less, then re-sold them for $900,000 through Ebay in the United States, making a tidy $100,000 profit.  The books were identical to texts used at U.S. schools except for a notation that they could not be exported.

John Wiley & Sons sued, claiming Kirtsaeng violated the copyright by selling the cheaper books in the United States.  The District Court held that the first sale doctrine did not apply to overseas purchases, and a jury awarded the publisher $600,000 in damages.  the 2d Federal Circuit Court of Appeals, in a split decision, affirmed.

The first sale doctrine holds, in short, that once an item is purchased, the original publisher / manufacturer loses his copyright protection.  Whoever purchases the item can resell it without violating the copyright.  It's why you can sell a used book, or a CD, or even a car.


In reaching the decision, the Court stated: "Reliance on the “first sale" doctrine is also deeply embedded in the practices of booksellers, libraries, museums and retailers who have long relied on its protection." 

To view the Court's opinion, CLICK HERE.



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25 Years Later: Hustler Magazine v Falwell - The Preacher, the Pornographer & the First Amendment

It seemed like the script for a movie - and indeed after all the smoke had cleared, it was a movie -- the academy award nominated film People vs. Larry Flynt.

The most notorious pornographer in the nation squared off against the sanctimonious self-appointed leader of the Christian coalition, the founder of Liberty University and the 700 Club television show.  Larry Flynt going to war with Jerry Falwell in front of the United States Supreme Court.

This is the twenty-fifth anniversary of the decision, and its legacy stands today as an important statement of the nature of freedom of speech and the protections of the First Amendment.  The decision seems even more important after last week's decision by the Supreme Court of Canada upholding punishment of speech that may expose the subject to "detestation and vilification."

The case involved a Campari ad parody in which the Falwell is portrayed has having his first sexual experience with his mother in an outhouse (after kicking out the goat), and portrayed as a drunken hypocrite who has to "get sloshed" before taking the pulpit.  
Falwell sued for invasion of privacy, defamation and intentional infliction of emotional distress.  The court dismissed the privacy claim.  At trial, the jury concluded that no one could interpret the ad as factual statements and found for Hustler on the defamation claim.

However the jury did find that Hustler intentionally inflicted emotional distress on Falwell and awarded a judgment of $200,000.  The 4th Circuit Court of Appeals affirmed.

In an 8-0 opinion authored by Chief Justice Rhenquist, the Supreme Court reversed.  The court held that the First Amendment provides breathing room for robust discussion.  No matter how the claim is structured, the First Amendment requires that liability must be premised only on false statements of fact made with constitutional malice.  Since the jury determined in the defamation claim that the statements made in the parody could not be taken as facts, there was no liability.

"At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. The freedom to speak one's mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole."

The entire point of the U.S. Supreme Court's decision in Hustler Magazine v. Falwell, 485 U.S. 46 (1988) is that writers and commentators do have the right to hold public figures up to "detestation and vilification" -- to dress them up in a cloak of absurdity to expose human foibles and layers of hypocrisy -- to in effect shout from the rooftop "The Emperor has no clothes!"

Oh, Canada! WTF? Writers Face Substantial Fines for Exposing People to "Vilification"

Political correctness is now the law of the land in Canada.

In a decision that has left me flabbergasted, the Supreme Court of Canada has imposed a legal "political correctness" test on speech and writing.  Cross the line and writers will face substantial fines.

In  Saskatchewan Human Rights Commission v. William Whatcott, the Canadian Supreme Court upheld fines issues against fervant anti-homosexual pastor Bill Whatcott for his flyer "Sodomites In Our Schools."

The Canadian Court apparently tried to strike a middle ground.  It struck from the Saskatchewan ordinance the provision that made it impermissible to make a statement that "ridicules, belittles or otherwise affronts the dignity“ of a person on prohibited grounds of discrimination.  But the Court said that a statement could be punished if "a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination.”

The Court held that a prohibition of any statement “that exposes or tends to expose to hatred” any person or class of persons on the basis of a prohibited ground is a "reasonable limit and demonstrably justified in a free and democratic society."

Truth is not a defense.  The statement can be true, but if it subjects the person to "detestation and vilification," it can be punished as improper speech.

For most American, the idea that pure speech can be punished simply because someone doesn't like it is an anathema to the very concept of freedom.   I would have thought Canadians shared this fundamental understanding of freedom.  But apparently not.

It is ironic that the Canadian decision comes on the 25th Anniversary of the U.S. Supreme Court's decision in Hustler Magazine v. Falwell, the case that established that writers cannot be liable for  inflicting emotional distress on the subject of their articles, even when intentionally done.

The Hustler v. Falwell case is the subject of my next post.

Oh, Canada! WTF? Canadian Supreme Court Strikes Down Free Speech - Really!

In what most writers would view as a stunning decision, the Canadian Supreme Court in a 6-0 decision held that speech that "exposes or tends to expose" a person, class or group of persons to hatred canned be banned and punished.

Really.

And what is even more inexplicable, the Canadian press and many commentators seem to be perfectly fine with the decision.

In short, the decision holds that in Canada, if your words could reasonably be found to expose a person to "detestation and vilification" on grounds protected from discrimination, you can face substantial fines and punishment.

In the case of  Saskatchewan Human Rights Commission v. William Whatcott, the Canadian Supreme Court upheld fines issues against a fervant anti-homosexual pastor.  Bill Whatcott  is known for his missives about the evil of homosexuality and abortion, and his campaign to criminalize homosexual acts in Canada.

Whatcott travelled around Canada speaking and distributing flyers containing incendiary language directed at gays and lesbians.  The flyers at issue were  "Sodomites in Our Schools" and "Keep Homosexuality out of Saskatoon's Public Schools!" 

The flyers refer to homosexuals as sodomites. Whatcott writes that our children are in danger of everlasting damnation if gays are not stopped from making homosexual activity acceptable in our society. 

Whatcott was fined $17,000 by the Saskatchewan Human Rights Commission on the basis that his flyers exposed homosexuals to hatred.  He was not charged with any act --  for assault, for trespass, or even for disturbing the peace.

He was charged and fined for what he wrote.

More on this decision in my next post.

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Defamation, Public Figures and the First Amendment: Part III

For purposes of defamation, constitutional malice means knowledge of falsity or reckless disregard for whether the statement was true or false.  But what does reckless disregard mean?

First, let's discuss what it does NOT mean.

Reckless disregard does not mean that a reasonable person would have been aware of the defamatory implications of the statement or that a reasonable person would not have made the statement.

Reckless disregard is NOT negligence or a failure to follow journalistic or other professional  standards.  In fact, journalistic standards are not generally admissible evidence as to the issue of reckless disregard.

Reckless disregard is not ill will.  You can make your statement with ill will.  You can intend to damage the reputation of the person about whom you are making the statement.  Again, evidence of ill will generally is not even admissible as evidence.

Reckless disregard means a statement made with a "subjective awareness of probable falsity." Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).   Effectively, this means that the person making the statement actually knew that it was probably false, but went ahead and made the statement anyway.

The Supreme Court expanded on this standard in the case of Harte-Hanks Communications v. Connaughton, 491 U.S. 657 (1989).  In that case, a political candidate got wind that a newspaper (which supported his opponent) was going to run an article about statements he supposedly made at a private gathering. But Connaughton said he had a tape recording of the meeting and that it would prove he did not make the statements.  The newspaper refused to listen to the tape and published the defamatory article.

The Supreme Court in a 9-0 decision sided with Connaughton, finding that the newspapers failure to check obvious sources who could contradict the allegations, and its refusal to listen to the tape, constituted "purposeful avoidance of the truth."  Such purposeful avoidance was sufficient to constitute the requisite reckless disregard, and therefore satisfy the constitutional malice test.

This  is a very high burden to carry.  It is particularly so because the Supreme Court has held that this must be proven by "clear and convincing evidence," a standard much higher than the preponderance of the evidence standard used in most civil cases, but not as high as the beyond a reasonable doubt standard used in criminal cases.

But who are public figures?  That's the next topic.

Defamation, Public Firgures and the First Amendment: Part II

In the last post, I discussed the Supreme Court's decision that in cases involving public figures, the plaintiff must show more than falsity.  The plaintiff must show the statement was made with malice.

But what does that mean?

The most confusing part of this constitutional test is use of the term "malice."  In a footnote in a later-decided case, the Supreme Court even expressed some regret at choosing that term.

Ask most people what "malice" means, and they will say "ill will" or something to that effect.  But for purposes of constitutional defamation requirements, "malice" does not mean ill will.  In fact the court has been emphatic that ill will has nothing to do with the constitutional test.  So much so, that ill will is not evidence of constitutional malice.

So what is it?

The Court defines constitutional malice as knowledge of falsity, or reckless disregard as to whether the statement was true of false.   Knowledge of falsity is pretty easy to understand.  But not so with reckless disregard, which again has a meaning different than the way it is commonly understood.

Knowledge of falsity means just that.  A person knew the statement was not true, but stated it anyway.  Example:  Writer of a celebrity biography reports that a movie star provided drugs to Whitney Houston  despite knowing it was not true, but suspecting that the allegations will get publicity for the book.  If sued, the writer faces liability for defamation, even under the constitutional standard.

But reckless disregard is more problematic.  That's the topic for my next post.

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Defamation, Public Figures and the First Amendment - Part I

Photo Credit, see below *

When a writer or broadcaster, or a lawyer representing them, faces a defamation claim, one of the first issues to be determined is whether the person claiming to be defamed is a public figure or a private person.

The critical importance of this determination is due to the different legal standard applied to public figures and private persons.  This distinction is mandated by the First Amendment through the key U.S. Supreme Court cases of New York Times v. Sullivan, 376 U.S. 254 (1964) and Curtis Publishing Company v. Butts, 388 U.S. 130 (1967).

The New York Times case involved a suit by a City Commissioner in charge of the Montgomery, Alabama Police Department.  The suit against the Times was for an editorial advertisement run in the newspaper by a civil rights group.  

This became the first Supreme Court decision holding that the First Amendment placed limitations on liability for defamation.  The Court held that in a vibrant democracy, the First Amendment requires "breathing room" in order to encourage robust public debate.  This "breathing room" requires that not every inaccurate or false statement about a public official leads to liability in the courts.  

The rule that came out of the case is that to find liability, the court must find that the false statement was made with malice.  But malice in this context does not mean ill will.  Instead it means with "knowledge or reckless disregard of the falsity of the statement." 

Three years after the New York Times case, the Court in Curtis Publishing expanded the First Amendment standard of constitutional malice to cases involving public figures.  The Curtis Publishing decision actually involved the consolidation of two cases - and with two different results.  Wally Butts was the athletic director at the University of Georgia, and he was accused in a Saturday Evening Post article by of fixing the 1962 football game between Georgia and arch-rival Alabama.  

The Court also consolidated the case of Associated Press v. Walker, where former General Edwin Walker sued for accusations that he incited a crowd to riot over the enrollment of James Meridith as the first black student at the University of Mississippi.  

In deciding these cases, the Court held that the same constitutional standard that applied to public officials also applied to public figures.  In applying the facts to this standard, the court ruled 5-4 that there was sufficient evidence in the Butts case to meet this standard, and affirmed the libel judgment for Butts.  In the Walker case, the court held 9-0 that Walker's evidence failed to meet this constitutionally required standard.

Photo credit, see below **

Footnote to history:  Walker was a racist, fervent anti-communist and a right-wing reactionary whose diatribes inflamed the passions of the South. In his hometown of Dallas, a mentally unstable leftist loner saw Walker on television and likewise had his passions inflamed.  In April, 1963,  after stalking Walker for weeks, this lone gunman sat in wait outside Walker's house with his mail-order Carcano rifle with a scope.  When Walker appeared, he fired a single shot from about 100 feet away. The wooden frame of the window slightly deflected the shot, saving Walker's life.  Walker was hit with splinters, but the bullet narrowly missed.

Seven months later, on November 22, 1963,  that same disturbed gunman, Lee Harvey Oswald, used that same Carcano mail-order rifle and assassinated President John F. Kennedy. 


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Copyright & First Purchase: SCOTUS to Determine Resale Rights of Book Purchasers

Do you have a right to resell these books? Image via Photo Pin.*

When someone purchases a book, do they purchase the right to re-sell it?

Nonsense, you say?  Who would ever think that when you buy something, you can't resell it at the best price you can get?  When you buy a car, you can resell it, right?  Same is true with books and CDs.  Otherwise flea markets, pawn shops and used book stores would be out of business.  If people couldn't resell what they buy, Pawn Stars would be the most boring show on television.

But not so fast.  A trial court has already held that a book purchaser violated the publisher's copyright by buying textbooks cheaply in Europe and selling them at a profit on E-bay.

Just what rights the purchaser of a book has is the multi-billion dollar question currently awaiting decision by the U.S. Supreme Court in Kirtsaeng v. John Wiley & Sons.  The decision will have far-reaching impact on the global intellectual property rights for books, CDs, and DVDs.

Kirtsaeng was a student in Europe, he found that text books, which were manufactured in Europe, were much cheaper than in the United States. Working with his parents, he bought $900,000 in texts books at the reduced European price, then resold them on Ebay to U.S. students, pocketing a nifty $100,000 profit.

Image via Photo Pin. **

Kirtsaeng took advantage of the common practice of manufacturers selling their products at lower prices in the global market than in the United States.  The practice of buying those cheaper-priced items abroad and reselling in the United States is called the "gray market"

Text book publisher John Wiley & Sons was offended at someone making six-figure profits by reselling its books, and sued Kirtsaeng for copyright infringement.  At trial, the jury found that Kirsaeng infringed on Wiley's copyright by unlawfully reselling the books he lawfully purchased in Europe and awarded Wiley $600,000 in damages.

The Supreme Court previously split 4-4 on this issue in 2010 when Justice Keegan did not take part in the decision because she had participated in preparation of the Department of Justice brief.  This time Justice Keegan is fully participating.

Ebay, Google and art museums are lined up in support of Kirtsaeng, saying that if the lower court decision is allowed to stand, it will disrupt the entire resale segment of the economy.  The book, movie and music industry is lined up in support of the lower court decision, arguing that it is necessary to avoid the producers of those goods from being undercut by a secondary market selling their products without permission.

Oral argument, which took place October 29, showed that the Court has not reached a consensus on the issue.  At one point Justice Breyer referred to the disruptive impact the decision could have on the resale market as the "bear in the mouse hole." Lawyers for the publisher could not satisfy Justice Breyer that affirming the decision for the publisher would not release that bear.

A decision is expected this spring.


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Free Lance Writers and Copyright Ownership: Is It Work for Hire?

So if you're a regular employee, and you create a something, it is a work for hire and  the copyright belongs to your employer. But what if you are a free-lance writer, web designer or artist, who is hired for a specific project? 

Royalty free image - see photo credit below

For these situations, the ownership of copyright often is  covered by the terms of the contract between the parties  That "small print" really does mean something.  But that's a subject for a later post.

What if there is no contract?

The leading case addressing ownership of copyright in these circumstances is the United States Supreme Court decision in Community for Non-Violence v. Reid (1989).  That case involved a sculpture commissioned by the plaintiff, a community organization devoted to assisting the homeless (hereinafter "Community").  Community contracted with Reid to prepare a sculpture, specifying various details including that it was to be a nativity scene using homeless people as the figures, providing the language to be used in the sculpture, and even providing persons as models for the figures.

As is so often the case in these type of disputes, the parties did not sign a written contract and did not discuss ownership of the copyright. Community claimed that it had specified the details of the work, and therefore the scupture was a "work for hire" under the Copyright Act and that Community owned the copyright.  Reid asserted that he was not an employee, but rather an independent contractor, and that he maintained ownership of the copyright.

Writing for a unanimous Supreme Court, Justice Thurgood Marshall held that the artist was an independent contractor, and therefore the sculpture was not a work for hire.

In reaching the decision, the Court pointed out that the Copyright Act does not define the term employer.  Consequently, the Court turned to common law, and held that the determination of who was an employee would turn on general common law concepts of agency.  The court specifically noted that individual state laws of agency would not apply as this was an issue of federal law. Nor is this determination governed by the test used by the IRS to determine whether a person is an employee or an independent contract.

The short version of the ruling is that even if the person commissioning an independent contract provides all of the details, the copyright remains with the person creating the work, unless there is a contract to the contrary.

So what are these concepts of agency that determine whether your work is your own or one for hire?   That's a topic for the next post.


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