Likening the estate of Sir Arthur Conan Doyle to a shakedown artist, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit has once again ruled for a California lawyer who tussled with the estate over copyright licensing fees.
Earlier this summer, the same Posner-led panel ruled that the estate had unlawfully sought a $5,000 licensing fee from Leslie Klinger, a writer and attorney who put together an anthology of Sherlock Holmes tales written by contemporary authors. In a short but fierce follow-up ruling issued on Monday, the Seventh Circuit ordered Conan Doyle’s estate to pay roughly $30,000 that Klinger says he incurred during the appellate phase of the copyright fight. (Klinger also has a pending motion for $39,000 in attorney fees incurred at the trial court level.)
“The Doyle estate’s business strategy is plain: charge a modest license fee for which there is no legal basis, in the hope that the ‘rational’ writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand,” Posner wrote for the three-judge panel. “Only Klinger (so far as we know) resisted. In effect he was a private attorney general, combating a disreputable business practice—a form of extortion.”
Klinger has a tax and estate planning practice in Los Angeles. Judging from his website, his real passion is Victorian literature, particularly Conan Doyle’s tales of the great detective Sherlock Holmes and his faithful lieutenant, Dr. Watson. Klinger has edited two anthologies of short stories paying homage to Holmes, and he advised on the 2011 film “Sherlock Holmes: A Game of Shadows,” starring Robert Downey Jr. and Jude Law.
The publisher of Klinger’s first anthology of stories, Random House, paid a licensing fee of $5,000 to Conan Doyle Estate Ltd., a U.K.-based company set up by the author’s heirs. In 2012 they made an identical demand on Pegasus Publishers, which agreed to publish Klinger’s second anthology of stories. The publication date for that anthology is Nov. 15 of this year, according to Klinger’s website.
Klinger responded to the estate’s request by seeking a declaratory judgment in U.S. district court in Chicago that essential characteristics of Holmes and Watson are in the public domain. Klinger’s lawyer, Polsinelli partner Scott Gilbert, filed the case in Chicago because that’s where the estate’s literary agent is based.
After the estate failed to respond to the lawsuit in a timely fashion, U.S. District Judge Ruben Castillo in Chicago entered a default judgment in Klinger’s favor. The estate’s outside lawyer, Benjamin Allison of Sutin Thayer & Browne, told ABA Journal that it allowed a default judgment to be entered against it “so [Klinger] could do his book.” A more cynical view is that the estate wanted to keep its legal fees down and avoid a far-reaching precedent that it can’t seek copyright licenses from authors and filmmakers.
Not content to stop there, Klinger filed a summary judgment motion in July 2013 in hopes of winning a precedential ruling on behalf of Sherlockians everywhere. Judge Castillo sided with Klinger and ruled in December 2013 that elements of 50 Sherlock Holmes tales Conan Doyle published before 1923 are no longer covered by U.S. copyrights. A Seventh Circuit panel led by Posner affirmed on June 16, and on July 17 U.S. Supreme Court Justice Elena Kagan denied an emergency petition by Conan Doyle’s heirs to stay the Seventh Circuit decision pending appeal.
Monday’s ruling on attorney fees is the icing on the cake for Klinger. Posner called the Conan Doyle estate’s infringement theory “quixotic” and credited Klinger with performing a “public service” by bringing the licensing scheme to an end. The judge also wrote that the estate may have violated antitrust laws by threatening to have publishers like Amazon.com Inc. boycott Klinger’s works.
“It’s time the estate, in its own self-interest, changed its business model.” Posner wrote.
The Conan Doyle estate’s lawyer, Allison, didn’t immediately return a call seeking comment. On his website, Klinger praised the ruling and wrote that he hoped other Sherlock-inspired creators would “say ‘no’” to unwarranted licensing demands.