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Week in Review, Part 2

By Martha Nimmer

Free Sherlock

How can a literary work, which first appeared some 125 years ago, still be subject to copyright protection? That, essentially, is the question posed by Sherlock Holmes scholar Leslie Klinger in a civil complaint filed last week in Illinois federal court. Klinger argues that many licensing fees paid to the Arthur Conan Doyle estate have been unnecessary and not legally required, as the main characters and elements in Sherlock Holmes are derived from materials published before January 1, 1923, and thus no longer subject to the protection of U.S. copyright law.

Leslie Klinger is a renowned scholar on the subject of Sherlock Holmes, and serves as the editor of the three-volume, nearly 3,000-page Annotated Sherlock Holmes. According to The New York Times, Klinger's complaint "stems from In the Company of Sherlock Holmes, a collection of Holmes-related stories by various authors, edited by Mr. Klinger and Laurie R. King, herself the author of a successful mystery series featuring Mary Russell, Holmes' wife." According to the complaint, the estate of Sherlock Holmes author Sir Arthur Conan Doyle contacted the publisher of In the Company of Sherlock Holmes, hinting that the sale of the work could be threatened unless the estate received a licensing fee. Klinger states that he reluctantly paid the fee along with his co-editor. Unhappy with having paid the fee, and reportedly tired of the thinly veiled threats from the Conan Doyle estate, Klinger has asked the court to make a declaratory judgment that the basic "Sherlock Holmes story elements" are in the public domain.

Klinger points out that the goal of his legal action is not to interfere with the estate's legitimate rights in ten Sherlock Holmes stories that were published after January 1, 1923, and enjoy copyright protection until 2023. Given the huge success of Sherlock Holmes-inspired series "Elementary" and "Sherlock," as well as the hit Robert Downey, Jr. film, when the remaining Holmes stories enter the public domain in 2023, more legal drama is likely to play out.


Read the complaint here: http://www.scribd.com/doc/125554239/Sherlock-Holmes-Complaint

The Central Park Five

In a victory for "the precious rights of freedom of speech and the press," a federal judge in New York quashed a subpoena by New York City that demanded notes and outtakes from the Ken Burns documentary film The Central Park Five. The film details the story of the five men wrongfully convicted in the infamous 1989 "Central Park Jogger" rape case. The men were released from prison eight years ago "after another man in an upstate prison confessed to the crime and provided DNA that exonerated the five." Following their release from prison, the five men filed a $50 million lawsuit against New York City, claiming that their confessions were coerced. The city is still defending the lawsuit, and sought the documentary's outtakes to "support its arguments that authorities were acting in good faith and relying on the best information available at the time."

In response to the city's subpoena, Florentine Films, the producer of the documentary, argued that the outtakes and other non-confidential news-gathering materials were protected by New York's Journalist Shield Law. The law, N.Y. Civ. Rights Law ยง 79-h, codifies the First Amendment privilege that protects journalists from the forced disclosure of confidential sources or materials obtained while gathering information for reporting purposes. U.S. District Judge Ronald Ellis agreed with Florentine Films that a reporter has a qualified evidentiary privilege for information gathered as part of a journalistic investigation, adding that "any discussion of the reporter's privilege begins with an inquiry into whether a journalist can first establish entitlement to the privilege by demonstrating the independence of her journalistic process." The "independence standard," however, is a challenging one to satisfy, and has been the death knell of journalist shield litigation in the past. For instance, in an example cited by The Hollywood Reporter, filmmaker Joseph Berlinger failed to satisfy the independence standard when he attempted to prevent outtake footage from his documentary Crude from being obtained by oil company Chevron. Chevron subpoenaed the material to aid the company's defense of litigation in Ecuador stemming from the alleged contamination of an indigenous community in the Amazon Rainforest.

Judge Ellis ruled that Florentine Films had established its independence, rejecting various arguments from city attorneys that argued to the contrary. The city argued, for instance, that the Central Park Five filmmakers had a "point of view in favor of the plaintiffs," which would eviscerate any argument in favor of journalistic independence. Dismissing this argument, Justice Ellis wrote that having a point of view was not dispositive of whether the filmmakers were, in fact, independent under Berlinger. Other factors to consider in resolving the question of independence--funding for the work, editorial independence, among others--weighed in Florentine Films' favor. Additionally, the court found that the city had failed to make a sufficient showing that the information demanded was of likely relevance, and not reasonably available from another source.


Read the decision here: http://www.scribd.com/fullscreen/126303350?access_key=key-1e3c52kg79vfn9hjhkze

Read the text of the Journal Shield Law here: http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$CVR79-H$$@TXCVR079-H+&LIST=LAW+&BROWSER=BROWSER+&TOKEN=15272944+&TARGET=VIEW

Penney Pains

Martha Stewart is no stranger to legal woes, and now, her company--Martha Stewart Living Omnimedia, Inc. (MSLO)--is being sued by Macy's Inc. (Macy's) in New York State Supreme Court. Macy's, one of the largest U.S. department-store chains, is hoping to block MSLO's agreement with retailer J.C. Penney to produce Martha Stewart-branded home goods. A nonjury trial in the case began earlier this week before state Supreme Court Justice Jeffrey K. Oing in Manhattan. Justice Oing previously granted Macy's preliminary injunction in July, which barred MSLO from developing home goods products with J.C. Penney. The company in December 2011 acquired a 17% stake in MSLO for $38.5 million, as part of an effort to revive sales with new mini-stores dedicated to Martha Stewart and other brands.

According to Macy's pre-trial memorandum, "Macy's contracted with MSLO at a time when the MSLO brand was associated with the significantly downscale Kmart and Ms. Stewart was just being released from prison." Macy's eventually moved the brand into "soft home goods upscale," which, Macy's attorneys called, "a herculean task" that initially resulted in financial losses for the Ohio-based retailer. Macy's attorneys argue that MSLO is now trying to reap the rewards of Macy's rebranding efforts, which took the Martha Stewart Living brand from the barren shelves of K-Mart into the more reputable Macy's storefront.

MSLO, in turn, has defended its agreement with J.C. Penney, accusing "Macy's of breach of contract and saying the retailer stocked and priced Martha Stewart products in a manner that favors private-label brands." Specifically, lawyers for MSLO argue that its original 2006 agreement with Macy's permitted it to "design and sell products within the exclusive categories as long as they are sold through the Internet, television or at any retail store branded with the Martha Stewart name that's operated by the company or its affiliates or "prominently" features the brand." In other words, the original 2006 contract "gives Macy's the exclusive right, with important exceptions [emphasis added], to sell Martha Stewart-branded products in certain exclusive product categories." The agreement, as construed by MSLO, does not give Macy's an exclusive right to design, promote or sell any product outside certain named categories.

Justice Oing has set aside three weeks for the trial. Martha Stewart may be called to testify at trial, according to lists of potential witnesses.

The cases are Macy's Inc. v. Martha Stewart Living Omnimedia Inc., 650197/2012, and Macy's Inc. v. J.C. Penney Corp., 652861/2012, New York State Supreme Court (Manhattan).


Developments in the Oscar Pistorius Murder Case

South African police have replaced the lead investigator in the Oscar Pistorius murder case in light of revelations that lead investigator Hilton Botha is being charged with attempted murder in an unrelated case. Botha, who is facing seven charges of attempted murder, was replaced by Lieutenant-General Vinesh Moonoo. Prosecutor Gerrie Nel said that the attempted murder charges arise from a 2011 incident wherein Botha and two others fired at a minibus taxi that they were trying to stop.

The replacement announcement followed a bail hearing in a Pretoria Magistrates court where Botha stated that Pistorius and his girlfriend, Reeva Steenkamp, argued before he fatally shot her. Pistorius' lawyer called Botha's evidence "tainted," adding "Botha was not a credible witness." "We cannot sit back and take comfort he is telling the full truth," Pistorius' lawyer added.

The prosecution has disputed Pistorius' account of how he shot Steenkamp through a bathroom door at his home during the wee hours of Valentine's Day; Pistorius said that he thought Steenkamp was a burglar. If convicted of premeditated murder, Pistorius faces a maximum term of life in prison. The state considers Pistorius a flight risk, and opposes bail. The athlete's family said in a statement that his "iconic status internationally" made it highly unlikely that he poses a flight risk.

Pistorius, deemed "Blade Runner" because of his prosthetic running blades, was born without fibulas and had both legs amputated below the knee at 11 months old. The runner was included on Time Magazine's list of the world's 100 most-influential people, and is the winner of six Paralympic gold medals. Pistorius was the first amputee runner to compete at the Olympic Games.

In other developments, sporting-goods company Nike has reportedly suspended its contract with Pistorius. Additionally, a spokesman for eyewear company Oakley said that the company also suspended its contract with the athlete "effective immediately." Finally, Clarins SA's Thierry Mugler perfume brand said on Twitter that it was "removing all campaigns featuring Oscar Pistorius, out of respect and sympathy to families involved in the tragedy."


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This page contains a single entry from the blog posted on February 22, 2013 12:29 PM.

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