Case 1:15-cv-00432-WPL-KBM Document 1 Filed 05/21/15 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO
CONAN DOYLE ESTATE LTD.

Plaintiff,
v.

No.1:15-CV-432

MIRAMAX, LLC,
ROADSIDE ATTRACTIONS LLC,
PENGUIN RANDOM HOUSE LLC,
MITCH CULLIN, WILLIAM CONDON,
Defendants.
COMPLAINT FOR INJUNCTION AND DAMAGES
Plaintiff Conan Doyle Estate Ltd. (CDEL) alleges as follows for its Complaint
against Defendants Penguin Random House, Roadside Attractions, LLC, Miramax,
LLC, Mitch Cullin, and William Condon.
INTRODUCTION
1.

This action for copyright infringement arises from unauthorized copying

by Mitch Cullinin his novel A Slight Trick of the Mind and in the motion picture Mr.
Holmes based on the novelof original Sherlock Holmes stories written by Sir Arthur
Conan Doyle (Conan Doyle). The remaining defendants have participated in copying
these protected stories in the infringing movie, have published and distributed the
infringing novel and motion picture, and have titled the movie so as to confuse
consumers and unfairly trade on CDELs goodwill.
2.

Defendant Mitch Cullin grew up in Santa Fe, New Mexico, and through

his father became acquainted with the noted Sherlockian scholar and collector John
Bennett Shaw, who also lived in Santa Fe. Defendant Cullin had access to all of Conan
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Doyles works in Mr. Shaws library. Cullins dedication of A Slight Trick of the Mind
included a dedication to the late John Bennett Shaw, who once left me in charge of his
library. It is apparent from A Slight Trick of the Minda story of Sherlock Holmes in
retirementthat Mr. Cullin read deeply in Conan Doyles Sherlock Holmes stories,
including those protected by copyright.
3.

The first fifty of Conan Doyles Sherlock Holmes short stories and

novels are in the public domain. But the last ten of his original Sherlock Holmes stories,
published between 1923 and 1927 (the Ten Stories), remain protected by copyright in
the United States. These copyrighted ten stories develop the details of Holmess
fictional retirement and change and develop the character of Holmes himself.
4.

Two of Conan Doyles public domain stories make references to

Holmess retirement, placing the following elements about it in the public domain: in
The Adventure of the Second Stain, Conan Doyle writes that Holmes has definitely
retired from London and betaken himself to study and bee-farming on the Sussex
Downs, and notoriety has become hateful to him. In His Last Bow, Conan Doyle
writes that in retirement Holmes was living the life of a hermit among your bees and
your books in a small farm upon the South Downs. These are the only public domain
references to Holmess retirement.
5.

But Conan Doyle wrote much more about Sherlock Holmess retirement

and later yearsincluding an entire short story set in the Sussex Downs in which the
retired Holmes solves one last case. This story, The Adventure of the Lions Mane,
significantly develops the fictional world of Holmess later life. In this story Conan
Doyle created original details such as the lonely farmhouse in which Holmes lives on a
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ridge overlooking the English Channel, with chalk cliffs visible in the distance and a
path down to the sea.
6.

Along with other copyrighted stories, Lions Mane also adds important

traits to Holmes character. For example, in his later years, living in the countryside
instead of London, Holmes comes to love nature and dedicates himself to studying it.
Other copyrighted stories give Holmes in his later years a personal warmth and the
capacity to express love for the first time.
7.

Cullin took these and many other protected elements of setting, plot, and

character in A Slight Trick of the Mind. Cullin has Holmes living in a lonely farmhouse
on a ridge over the Channel. Chalk cliffs are visible in the distance and a path leads
down to the sea. Holmess love of nature and developing ability to express love are
central to Cullins story.
8.

Cullin also copied entire passages from Conan Doyles copyrighted story

The Adventure of the Blanched Soldier. Cullin took from that story the creative point
of view of Holmes rather than Watson narrating a detective storyand the plot behind
it: that Watson has remarried and moved out of Baker Street.
9.

Cullin then closely mimics the next passage from Blanched Soldier,

about Holmess view of the liberties Watson took in writing Holmess exploits,
complete with an imaginary conversation between the two on the subject.
10.

Cullin copied the next passage from Blanched Solider as well. Conan

Doyle wrote:
It is my habit to sit with my back to the window and to
place my visitors in the opposite chair, where the light falls
full upon them. Mr. James M. Dodd seemed somewhat at a
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loss how to begin the interview. I did not attempt to help

him, for his silence gave me more time for observation. I
have found it wise to impress clients with a sense of power,
and so I gave him some of my conclusions.
From South Africa, sir, I perceive.
Yes, sir, he answered, with some surprise.
Cullin copies not only the seating placement using the windows light to advantage, but
the full sequence of the clients resulting awkwardness, Holmes allowing the discomfort
and using it for observation, then impressing his client with conclusions and noting the
clients surprised reaction. Cullin writes:
As was my usual custom, I sat with my back to the window
and invited my visitor into the opposite armchair, where
from his vantage pointI became obscured by the
brightness of the outside light, and hefrom minewas
illuminated with perfect clarity. Initially, Mr. Keller
appeared uncomfortable in my presence, and he seemed at
a loss for words. I made no effort to ease his discomfort,
but used his awkward silence instead as an opportunity to
observe him more closely. I believe that it is always to my
advantage to give clients a sense of their own vulnerability,
and so, having reached my conclusions regarding his visit, I
was quick to instill such a feeling in him.
There is a great deal of concern, I see, about your wife.
That is correct, sir, he replied, visibly taken aback.
11.

Cullin took telling details that confirm he copied from protected stories.

For example, Cullin copied the detail of Watson securing new lodgings in Queen Anne
Streeta fictional detail Conan Doyle invented only in the copyrighted 1924 story The
Adventure of the Illustrious Client.
12.

Cullin also took from copyrighted stories that Holmes has gotten over his

distaste for dogs and has come to love them. Conan Doyle creates this development in a
copyrighted story and has Holmes plan to write a monograph on the uses of dogs in the
work of the detective. (emphasis added.) Cullin takes Holmess love for dogs from this
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story and has him write a monograph titled The Use of Dogs in the Work of the
Detective.
13.

Cullin took far more significant protected creativity as well. For

example, Conan Doyle in Lions Mane has developed Holmes so that he reacts with
warmth and emotion to the woman at the center of the storyunlike his famous
indifference to women in public domain stories. Cullin copies this character
development, not only by placing a woman at the center of the detective story Holmes
narrates, but having Holmes react to her with genuine emotion.
14.

Defendant Penguin Random House published this infringing novel with

full knowledge of the ten copyrighted stories of Conan Doyle.

15.

Defendant Cullin then served as a screenwriter adapting his novel to

create the motion picture Mr. Holmes, starring Sir Ian KcKellen and Laura Linney. The
pictures theatrical release in the United States is set for July 17, 2015. Reviews of its
early screenings, together with trailers released in the United States, reveal that the
motion picture uses the same elements from Conan Doyles copyrighted stories.
PARTIES AND JURISDICTION
16.

Plaintiff Conan Doyle Estate Ltd is a United Kingdom corporation

formed by the family of Sir Arthur Conan Doyle to license and manage the rights in and
associated with Conan Doyle and his work. The Conan Doyle Estate works with authors
and motion picture studios to bring out new Sherlock Holmes stories, from Anthony
Horowitzs novels House of Silk and Moriarty to Paramount Pictures Young Sherlock
Holmes, Warner Brothers ongoing Sherlock Holmes movies, the BBCs television
series Sherlock (shown in the United States on PBS), and CBSs Elementary. Conan

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Doyles licensing representative is Hazelbaker & Lellenberg, Inc., whose principal

place of business is in Santa Fe, New Mexico.
17.

Defendant Mitch Cullin lived in Santa Fe, New Mexico part of his life

and is now a resident of California. He is the author of A Slight Trick of the Mind and
was a screenwriter for the motion picture Mr. Holmes. Cullin contracted to have his
book distributed in all fifty states including New Mexico, and on information and belief
many copies of the book have been sold in New Mexico since its publication in 2005.
Defendant Cullin has also contracted to have the infringing motion picture Mr. Holmes
distributed in all fifty states including New Mexico, beginning on or about July 17,
2015.
18.

Upon information and belief, Defendant Penguin Random House LLC is

a Delaware limited liability company with a principal place of business in New York.
Penguin Random House regularly conducts business in all fifty states, including New
Mexico, and over the past ten years has distributed and sold many copies of the
infringing novel A Slight Trick of the Mind in New Mexico.
19.

Defendant William Condon is a resident of California and has directed

several motion pictures released nationwide, including in New Mexico. He directed Mr.
Holmes, copying emotions, character traits, and other protected elements from Conan
Doyles copyrighted Ten Stories.
20.

Upon information and belief, Defendant Miramax LLC is a Delaware

limited liability company which regularly distributes motion pictures and otherwise
conducts business in all fifty states, including New Mexico, has contracted to distribute

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the infringing motion picture Mr. Holmes in the United States, and has taken steps to
release it in New Mexico on or about July 17, 2015.
21.

Upon information and belief, Defendant Roadside Attractions LLC is a

California limited liability company which regularly distributes motion pictures and
conducts business in all fifty states, including New Mexico. Along with Miramax,
Roadside has contracted to distribute the infringing motion picture Mr. Holmes in the
United States, and has taken steps to release it in New Mexico on or about July 17,
2015.
22.

Venue is proper in this Court pursuant to 28 U.S.C. 1391(b) because all

the defendants are subject to personal jurisdiction in this district.

FACTS
23.

Conan Doyle Estate Ltd. is the assignee of the copyrights owned by

Dame Jean Conan Doyle, the last surviving child of Sir Arthur Conan Doyle. After
passage of the 1976 Copyright Act, Dame Jean exercised her rights under 17 U.S.C.
304 to recover the copyrights in her late fathers works. Copies of each Notice of
Termination were duly recorded in the United States Copyright Office.
The Estates Copyrights
24.

Although some copyrights have expired with the passage of time, the

copyrights in the following ten stories, published in the United States between 1923 and
1927, remain in force:
The Adventure of the Creeping Man (1923)
The Adventure of the Sussex Vampire (1924)
The Adventure of the Three Garridebs (1924)
The Adventure of the Illustrious Client (1924)
The Adventure of the Three Gables (1926)
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The Adventure of the Blanched Soldier (1926)

The Adventure of the Lions Mane (1926)
The Adventure of the Retired Colourman (1926)
The Adventure of the Veiled Lodger (1927)
The Adventure of Shoscombe Old Place (1927)
25.

These Ten Stories create many details of setting, plot, and background in

the fictional world of Sherlock Holmes. They also add protected features to the Holmes
and Watson characters that make for the fully-formed characters depicted in the
infringing novel and motion picture. As some of the twentieth centurys most inventive
and compelling fiction, these elements are highly original and protectable. They include
the following:
Many details of Holmess retirement, from fictional
details of the setting noted above to Holmess markedly
different interest in the natural world and his becoming
caught up in solving one last casewith a woman at its
center to whom Holmes reacts differently than he has to
most other women in his life.
Holmes develops a gentler demeanor, emotional
warmth, and the ability to show love in his later years.
Holmess and Watsons relationship changed over the
years, developing from that of mere companions into a
truly close friendship.
Holmess knowledge of medicine and his use of it for
detection is created in copyrighted stories and was
unknown about him from public domain stories.
Holmes embraces modern technologies and uses them in
his practice for the first time in copyrighted stories,
revealing his attitude toward science and technology. In
the copyrighted Shoscombe Old Place (1927), Holmes
pioneers the use of the microscope as an investigative
tool, and in The Lions Mane employs photographic
analysis for detection.
Holmes changes from caring little for dogs to having
such great interest in them and their relationship to
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humans that, in the copyrighted The Creeping Man

(1923), he intends to write a monograph on the subject.
The Estates Trademarks
26.

The Estate has extensively used and licensed SHERLOCK HOLMES as

a trademark and service mark. The Estate developed rights in its SHERLOCK
HOLMES mark long before the activities of defendants in preparing the motion picture
Mr. Holmes, and the SHERLOCK HOLMES mark serves as a powerful indicator of
goods and services sponsored by or otherwise affiliated with the Estate.
27.

The Estate owns United States trademark registrations for SHERLOCK

HOLMES, including Reg. No. 4,690,745 for cultural, educational, and entertainment
exhibitions. The Estate also owns pending registration applications for SHERLOCK
HOLMES, Serial Nos. 77/937,863, 77/937,845, 77/937,813, and 77/937,852. These
applications, filed February 17, 2010, cover the following goods and services:
Entertainment services, namely, production of motion pictures,
television dramas, stage plays, and radio programs; entertainment
services, namely, providing online electronic games, online
computer games, and online video games;
Motion picture and television films featuring musical, dramatic,
comedic and theatrical performance; prerecorded goods, namely,
prerecorded audio and video cassettes, compact discs, and digital
versatile discs all featuring audio books and stories in the field of
detective fiction, motion picture and television films, animated
cartoons, radio programs, music, and games; downloadable
electronic publications in the nature of e-zines and electronic
books in the field of detective fiction;
Printed matter, namely, books, short stories, magazines, and
newsletters in the field of detective fiction; photographs; story
books; and
Games and playthings, namely playing cards, board games,
puzzles, and action figures.
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28.

The Estate has developed common law trademark protection for

SHERLOCK HOLMES for the above goods and servicesincluding motion picture
and television seriesby virtue of its consistent licensing of its mark. Every major
motion picture and television production in the past thirty years using SHERLOCK
HOLMES has been released in the United States in association with the Estate, from
Lorindy Pictures 1981 television movie series Sherlock Holmes, Paramount Pictures
1985 movie Young Sherlock Holmes, and Granadas 1989 television series Sherlock
Holmes, to Warner Brothers current Sherlock Holmes movies and the BBCs Sherlock.
Because of its widespread use in connection with Estate-licensed motion pictures and
television series, SHERLOCK HOLMES has tremendous power as a source identifier
of the Estate.
Cullins Novel Borrows Substantially from Copyrighted Stories
29.

In addition to Defendant Cullins access to the copyrighted Sherlock

Holmes stories described above, all of the defendants have had constant access and
exposure to the Ten Stories, which have been widely published and portrayed in popular
movies and television series for the past eighty years. For example, the British
television series The Case-Book of Sherlock Holmes, depicting the Ten Stories (under
license from CDELs predecessor in interest Dame Jean Conan Doyle), was broadcast
in the United States between 1991 and 1993 on PBS. Countless television programs and
movies have depicted Sherlock Holmes as changed and developed in the Ten Stories.
30.

As noted above, Conan Doyle dramatically developed Sherlock

Holmess retirement in the copyrighted 1926 story The Adventure of the Lions
Mane. In it Conan Doyle changed Sherlock Holmes. Holmes now loves the quiet of
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nature. He writes of his withdrawal to my little Sussex home, when I had given myself
up entirely to that soothing life of Nature . . . . Conan Doyle has his mature Holmes
become attentive to nature in a new way (all Nature was newly washed and fresh, he
says), and he devotes his time to observing and studying nature.
31.

This original development in Holmess character is infringed on every

page of Cullins book. Cullin has Holmes write: I no longer crave the bustle of London
streets, nor do I miss navigating through the tangled mires created by the criminally
disposed. Moreover, my life here in Sussex has gone beyond pure contentment, and the
majority of my waking hours are spent either in the peaceful solitude of my study or
amongst the methodical creatures who inhabit my apiary. Copying Conan Doyle in
Lions Mane, Cullin expresses Holmess love of nature, in part by meditative walks
along the path to the beach and along the seashore.
32.

Cullin has Holmes articulate his belief in nature when he writes to his

housekeepers young son:

Not through the dogmas of archaic doctrines will you gain
your greatest understandings, but, rather, through the
continued evolution of science, and through your keen
observations of the natural environment beyond your
windows. To comprehend yourself truly, which is also to
comprehend the world truly, you neednt look any further
than at what abounds with life around youthe
blossoming meadow, the untrodden woodlands. Without
this as mankinds overriding objective, I dont foresee an
age of actual enlightenment ever arriving.
33.

Cullin copied the setting of his novel from Conan Doyles Lions

Mane. Conan Doyle writes, My villa is situated upon the southern slope of the
Downs, commanding a great view of the Channel, with chalk cliffs visible in the

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distance and a path leading down to the sea. He continues, My house is lonely. I, my
old housekeeper, and my bees have the estate all to ourselves. At the beginning of the
story Holmes goes out for a morning walk on the path leading to the beach.
34.

Both A Slight Trick of the Mind and Mr. Holmes copy the lonely villa,

the chalk cliffs in the distance, the path to the beach, and Holmess walks on it.
35.

Conan Doyle also changed Holmes in later life by giving him a

gentleness and kindness Holmes did not possess in public domain stories. The
copyrighted mature Holmes is quite unlike the more clinical and purely rational Holmes
described in public domain stories. Conan Doyle expresses this change through
Holmess dialogue and the tone of his narration. Cullin infringes this copyrighted
character development on every page of his book.
The Story Within the Story
36.

A Slight Trick of the Mind tells not only a story of Holmes in retirement

but also has Holmes writing a story of his own: his last case as a detective. This story
within the story, which Cullin titles The Glass Armonicist, is unusual for a Sherlock
Holmes story in that it is not narrated by John Watson, but by Holmes himself in the
first personas is Lions Mane.
37.

Only one other story by Conan Doyle is narrated by Holmes in the first

person, and it is the copyrighted 1926 story The Adventure of the Blanched Soldier.
In that story Conan Doyle invents the reason for Holmess narration: Holmes explains
that he is living alone in his Baker Street lodgings because John Watson has moved out
to get remarried. Although in a public domain story Watson moved out the first time he

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got married, Conan Doyles decision to have him remarry and leave Holmes a second
time is a creative choice made only in this copyrighted story.
38.

Cullins Glass Armonicist copies this entire plot element of remarriage

and its accompanying first-person creative point of view: Cullin has Holmes narrate the
story himself, explaining that he is living alone in Baker Street because John Watson
has remarried and moved out.
39.

After taking this from Blanched Soldier, Cullin goes on to quote the

next passage from The Blanched Soldier as well. Conan Doyle wrote:
Perhaps I have invited this persecution, since I have often
had occasion to point out to him [Watson] how superficial
are his own accounts and to accuse him of pandering to
popular taste instead of confining himself rigidly to facts
and figures. Try it yourself, Holmes! he has retorted,
and I am compelled to admit that, having taken my pen in
my hand, I do begin to realize that the matter must be
presented in such a way as may interest the reader.
Cullin copies:
During the years in which John was inclined to write
about our many experiences together, I regarded his
skillful, if somewhat limited, depictions as exceedingly
overwrought. At times, I decried his pandering to popular
tastes and asked that he be more mindful of facts and
figures . . . . In turn, my old friend and biographer urged
me to write an account of my own. If you imagine I have
done an injustice to our cases, I recall him saying on at
least one occasion, I suggest you try it yourself,
Sherlock!
. . . The results . . . [showed] me that even a truthful
account must be presented in a manner which should
entertain the reader.

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40.

Cullin goes right on copying from Blanched Soldier, using the next

passage from that story as the next passage in his Glass Armonicist, as noted earlier.
Conan Doyle wrote:
It is my habit to sit with my back to the window and to
place my visitors in the opposite chair, where the light
falls full upon them. Mr. James M. Dodd seemed
somewhat at a loss how to begin the interview. I did not
attempt to help him, for his silence gave me more time for
observation. I have found it wise to impress clients with a
sense of power, and so I gave him some of my
conclusions.
From South Africa, sir, I perceive.
Yes, sir, he answered, with some surprise.
Cullin copies:
As was my usual custom, I sat with my back to the
window and invited my visitor into the opposite armchair,
wherefrom his vantage pointI became obscured by
the brightness of the outside light, and hefrom mine
was illuminated with perfect clarity. Initially, Mr. Keller
appeared uncomfortable in my presence, and he seemed at
a loss for words. I made no effort to ease his discomfort,
but use his awkward silence instead as an opportunity to
observe him more closely. I believe that it is always to my
advantage to give clients a sense of their own
vulnerability, and so, having reached my conclusions
regarding his visit, I was quick to instill such a feeling in
him.
There is a great deal of concern, I see, about your
wife.
That is correct, sir, he replied, visibly taken aback.
41.

Cullin has Watson taking new lodgings in Queen Anne Street, copied

from Conan Doyles protected 1924 story The Adventure of the Illustrious Client. A
more subtle but important copying is the solicitousness and respect Holmes shows for
Watson at the beginning of A Glass Armonicist. This particular respect for Watson is

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taken in part from the protected stories The Three Garridebs and The Adventure of
the Lions Mane.
42.

In Conan Doyles copyrighted Lions Mane, a beautiful woman is

attached to the man at the center of the case. Holmes reacts differently to this woman
than he has to other women in his past. In public domain stories Holmes never spoke
of the softer passions, save with a gibe and a sneer. (A Scandal in Bohemia.) In
Lions Mane Holmes is much different:
But the words were taken from my mouth by the
appearance of the lady herself. There was no gainsaying
that she would have graced any assembly in the world.
Who could have imagined that so rare a flower would
grow from such a root and in such an atmosphere?
Women have seldom been an attraction to me, for my
brain has always governed my heart, but I could not look
upon her perfect clear-cut face, with all the soft freshness
of the Downlands in her delicate colouring, without
realizing that no young man would cross her path
unscathed.
Cullin similarly has Holmes react from his heart rather than just his mind to the woman
at the center of The Glass Armonicist.
43.

One of the most striking of Conan Doyles copyrighted developments in

Holmess character is that in his later life Holmes warms emotionally and develops the
ability to express love. Holmes might easily have remained a rationalist in his later
years, suppressing his emotions to the end. But Conan Doyle made the opposite artistic
decision in copyrighted stories. Conan Doyle expresses this character development in
several of the Ten Stories, including The Three Garridebs and Lions Mane. For
example, Conan Doyle writes in Three Garridebs, after the storys villain fires a gun
and Watson is hit:
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You're not hurt, Watson? For Gods sake, say that you
are not hurt!
It was worth a woundit was worth many woundsto
know the depth of loyalty and love which lay behind that
cold mask. The clear, hard eyes were dimmed for a
moment, and the firm lips were shaking. For the one and
only time I caught a glimpse of a great heart as well as a
great brain. All my years of humble but single-minded
service culminated in that moment of revelation.
44.

This new ability and readiness of Holmes to feel and express emotion is

a central change in his character. Cullin uses it on nearly every page of his infringing
novel and in many scenes of his movie. Cullin has Holmes feel many emotions in his
noveland near its end Holmes speaks of love to his housekeeper, after her son has
died. Copying Conan Doyle, Cullin writes that she has never heard him utter the word
before.
45.

Cullin took from the copyrighted The Adventure of the Creeping Man

Holmess collection of scientific books on nature subjects. In the same story by Conan
Doyle, Holmes has developed a love for dogs, in marked contrast to Holmess attitude
toward dogs in public domain storieswhere, in A Study in Scarlet, Holmes poisons
a dog in cold blood as a forensic experiment. By contrast, in the copyrighted Creeping
Man Holmes talks about writing a monograph on the uses of dogs in the work of the
detective. (emphasis added.) Cullin takes Holmess love for dogs from this story and
has him write a monograph titled The Use of Dogs in the Work of the Detective.
The Motion Picture Was Co-Written by Defendant Cullin and
Makes Substantial Infringing Use of the Same Copyrighted Elements;
In Addition it Trades On CDELs Goodwill With the Title Mr. Holmes
46.

The producers of Mr. Holmes have consistently represented the motion

picture as based on Cullins A Slight Trick of the Mind. Not only is the movie adapted
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from the book, but Defendant Cullin himself was one of the movies screenwriters.
Although Mr. Holmes has not yet been released in the United States, its producers have
released several trailers. The trailers make it clear that the movie closely follows the
book.
47.

The trailers show that Defendant William Condons and Sir Ian

McKellens portrayal of Holmes make full use of the emotions and growing warmth
Conan Doyle created for Holmes in the copyrighted Ten Stories.
48.

The trailers also confirm that the movie makes extensive infringing use

of a host of other creative elements Conan Doyle developed in copyrighted stories

including Holmess love for nature, his reacting from his heart to the beautiful woman
in his last case, Holmess own developing capacity to express love, his new love for
dogs, Watsons getting re-married and leaving Holmes Baker Street lodgings, and
Holmess relationship with Watson becoming a genuine friendship.
49.

The movie even reproduces Holmess secluded house, complete with

chalk cliffs in the distance and a path leading down to the sea.
50.

The movie uses a title confusingly similar to CDELs trademark

SHERLOCK HOLMES, creating a likelihood that consumers will mistakenly believe

CDEL has sponsored or is affiliated with defendants motion picture, and thereby
unfairly trading on CDELs goodwill.
The Publisher, Writer, and Motion Picture
Producers All Refuse to Acknowledge Copying from
Protected Stories or the Misuse of CDELs Trademark
51.

Defendant Cullin wrote his novel A Slight Trick of the Mind in 2005. The

Conan Doyle Estate refrained from pursuing the infringement until a motion picture
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began to be produced. At that point CDEL wrote to the author, the book publisher, and
movie producers describing the copying from Sir Arthurs copyrighted works.
52.

Defendant Penguin Random House refused to acknowledge the

copyingand where copying was obvious, claimed fair useeven though the United
States Court of Appeals for the Seventh Circuit has held within the last year that
elements such as Watsons leaving Baker Street to remarry and Holmess love of dogs
are protected by the copyrights in the Ten Stories.
53.

The producers of the motion picture said they would seek a license from

the Conan Doyle Estate but never did so. The Conan Doyle Estate wrote to Penguin
Random House, Mr. Cullin, and the movie producers to state that it respected the added
originality in Cullins story and the quality of both the book and movie, and wanted to
reach a rational resolution acknowledging the contributions of Conan Doyle and Cullin.
54.

Penguin Random House, the motion picture producers and distributors,

and Mr. Cullin ignored the letter.

55.

Defendants Miramax and Roadside Attractions have scheduled the

United States release of Mr. Holmes for July 17, 2015.

COUNT I
COPYRIGHT INFRINGEMENT
IN A SLIGHT TRICK OF THE MIND
(against Defendants Cullin and Penguin Random House LLC)
56.

CDEL incorporates by reference all of the foregoing allegations.

57.

CDEL owns registered copyrights in the Ten Stories.

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58.

The Ten Stories contain highly original creative expression protected by

copyright.
59.

Defendants had access to the Ten Stories, which have been widely

published since 1927 and aspects of which have been portrayed in popular movies and
television for decades. The Ten Stories were personally accessible to Defendant Cullin
in the library of John Bennett Shaw.
60.

Defendants copied protected expression from the Ten Stories.

61.

Upon information and belief, all copies of the Ten Stories to which

defendants had access contained copyright notices. Because of these copyright notices,
among other reasons, defendants knew or should have known the Ten Stories were
protected by copyright laws.
62.

Defendants were never authorized to copy protected elements from the

Ten Stories.
63.

Upon information and belief, defendants willfully infringed the

copyrights in the Ten Stories by reproducing highly original fictional expression from
these copyrighted works in A Slight Trick of the Mind, creating unauthorized derivative
works using that protected expression, and distributing such unauthorized works.
64.

Defendants actions violate CDELs exclusive rights under 17 U.S.C.

106, and constitute willful infringement of CDELs copyrights in the Ten Stories.
Defendants past and continuing copying and distribution of A Slight Trick of the Mind
constitutes willful, deliberate, and ongoing infringement of CDELs copyrights, causing
actual and continuing damage to CDEL.

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COUNT II
COPYRIGHT INFRINGEMENT IN MR. HOLMES
(against Defendants Cullin, Condon, Miramax, LLC, and Roadside Attractions LLC)
65.

CDEL incorporates by reference all of the foregoing allegations.

66.

CDEL owns registered copyrights in the Ten Stories.

67.

The Ten Stories contain highly original creative expression protected by

copyright.
68.

Defendants had access to the Ten Stories, which have been widely

published since 1927 and portrayed in popular movies and television for decades. The
Ten Stories were personally accessible to Defendant Cullin in the library of John
Bennett Shaw. Mr. Holmes is substantially similar to protected expression from the Ten
Stories.
69.

Defendants copied substantial protected expression from the Ten Stories.

70.

Upon information and belief, all copies of the Ten Stories to which

defendants had access contained copyright notices. Because of these notices, among
other reasons, defendants knew or should have known the Ten Stories were protected by
copyright laws.
71.

Defendants were never authorized to copy protected elements from the

Ten Stories.
72.

Upon information and belief, defendants willfully infringed the

copyrights in the Ten Stories by reproducing original expression from the copyrighted
works in Mr. Holmes, creating unauthorized derivative works using that protected
expression, and distributing, displaying, and performing such unauthorized works.
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73.

Defendants Cullin, Condon, Miramax, and Roadside Attractions are

presently threatening to further distribute, display, and perform the infringing Mr.
Holmes, together with infringing images and portions thereof, in a theatrical release of
Mr. Holmes nationwide beginning July 17, 2015.
74.

Defendants actions violate CDELs exclusive rights under 17 U.S.C.

106, and constitute willful infringement of CDELs copyrights in the Ten Stories.
Defendants past and continuing copying and threatened future distribution of Mr.
Holmes constitutes willful, deliberate, and ongoing infringement of CDELs copyrights,
and are causing irreparable harm to CDEL.
75.

CDEL has no adequate remedy at law.

COUNT III
TRADEMARK INFRINGEMENT AND
UNFAIR COMPETITION IN MR. HOLMES

(against Defendants Cullin, Condon, Miramax, LLC, and Roadside Attractions LLC
76.

CDEL incorporates by reference all of the foregoing allegations.

77.

Defendants use of confusingly similar imitations of CDELs marks in

connection with the advertising, sale, offering for sale, distribution, and other
exploitation of defendants motion picture, and defendants authorizing or contributing
to the foregoing, without CDELs permission and consent, has created and will continue
to create confusion in the marketplace and a false impression in the minds of the public
that CDEL is somehow sponsoring or affiliated with defendants, or that CDEL is
associated with or endorsing defendants movie.

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78.

Defendants have used marks confusingly similar to CDELs federally

registered marks in violation of 15 U.S.C. 1114, and have made false representations,
false descriptions, and false designations of origin in violation of 15 U.S.C. 1125(a).
79.

Defendants activities have caused, and unless enjoined by this Court

will continue to cause, a likelihood of confusion and mistake among members of the
public and, additionally, injury to CDELs goodwill and reputation as symbolized by its
common law and federally registered marks, for which CDEL has no adequate remedy
at law.
80.

Defendants actions demonstrate an intentional, willful, and malicious

intent to trade on CDELs marks and reputation, to cause confusion, mistake, and
deception, and to take advantage of the goodwill and public recognition associated with
CDELs marks for their own commercial advantage, to CDELs irreparable injury.
81.

Defendants have caused and are likely to continue causing substantial

injury to CDEL and to the public, and CDEL is entitled to injunctive relief and to
recover actual damages, defendants profits, enhanced profits and damages, costs, and
reasonable attorneys fees under 15 U.S.C. 1114, 1116, and 1117.

JURY DEMAND
CDEL hereby demands a jury trial.

PRAYER FOR RELIEF

WHEREFORE Plaintiffs demand:

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A.

That defendants, their directors, officers, agents, subsidiaries, and

affiliates and all persons acting by, through, or in concert with any of them, be
permanently enjoined from the following:
1) using and infringing the copyrights of Plaintiffs in any manner, and
from reproducing, exhibiting, transmitting, displaying, distributing or preparing
derivative works from any copyrighted material in the Ten Stories;
2) using or infringing CDELs trademarks, or using any other trademark
confusingly similar to CDELs trademarks in connection with the marketing or
display of defendants motion picture or other merchandise;
3) using any false designation of origin or false description which can or
is likely to lead the public, or individual members thereof, erroneously to believe
either that any motion picture or merchandise or service was prepared, offered
for sale, licensed, sponsored, endorsed, or authorized by CDEL, when such is
not the case; and
4) assisting, aiding, or abetting any other person or entity in engaging in
or performing any of the activities referred to in subparagraphs (1)(3) above;
B.

That defendants be required to pay to CDEL such actual damages as it

has sustained as a result of defendants copyright infringement pursuant to 17 U.S.C.

504;
C.

That defendants be required to account for and disgorge to CDEL all

gains, profits, and advantages derived from their copyright infringement pursuant to 17
U.S.C. 504(b);

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D.

That defendants be required to pay CDEL statutory damages and an

increase in the award of statutory damages due to defendants willful infringement

pursuant to 17 U.S.C. 504(c);
E.

That defendants be required to pay CDEL all such damages, profits,

enhanced profits and damages, costs and reasonable attorneys fees as are warranted
under 15 U.S.C. 1114, 1116, and 1117.
F.

That the Court enter judgment for CDEL and against defendants for all

claims, including pre- and post-judgment interest, as allowed by law;

G.

That the Court enter judgment against defendants finding that their

unlawful copying of the Ten Stories was and is willful;

H.

That defendants be ordered to pay CDEL its costs in this action along

with reasonable attorneys fees; and

I.

That CDEL be granted such other relief as is just and equitable.

Respectfully submitted,
SUTIN THAYER & BROWNE
A Professional Corporation

By /s/ Benjamin Allison

Paul Bardacke
Benjamin Allison
317 Paseo de Peralta
PO Box 2187
Santa Fe, NM 87501
Tel: (505) 988-5521
Fax: (505) 982-5279
[email protected]
7110187.doc

Counsel for Plaintiff

Conan Doyle Estate Ltd.
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