JS 44 (Rev. 12/12) CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) I. (a) PLAINTIFFS LESLIE S. KLINGER, an individual (b) County of Residence of First Listed Plaintiff Los Angeles (EXCEPT IN U.S. PLAINTIFF CASES) (c) Attorneys (Firm Name, Address, and Telephone Number) Scott M. Gilbert/Kourtney A. Mulcahy Hinshaw & Culbertson LLP 222 N. LaSalle, Ste. 300, Chicago, IL 60601 312-704-320 DEFENDANTS CONAN DOYLE ESTATE, LTD. County of Residence of First Listed Defendant Cook (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. Attorneys (If Known) II. BASIS OF JURISDICTION (Place an "X" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X" in One Box for Plaintiff) (For Diversity Cases Only) and One Box for Defendant) 1 U.S. Government Plaintiff 2 U.S. Government Defendant 3 Federal Question (U.S. Government Not a Party) 4 Diversity (Indicate Citizenship of Parties in Item III) Citizen of This State Citizen of Another State Citizen or Subject of a Foreign Country PTF DEF 1 1 2 2 3 3 Incorporated or Principal Place of Business In This State Incorporated and Principal Place of Business In Another State Foreign Nation PTF DEF 4 4 5 5 6 6 IV. NATURE OF SUIT (Place an "X" in One Box Only) CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES 422 Appeal 28 USC 158 423 Withdrawal 28 USC 157 PROPERTY RIGHTS 625 Drug Related Seizure of Property 21 USC 881 690 Other 820 Copyrights 830 Patent 840 Trademark LABOR SOCIAL SECURITY 110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Exclueds Veterans) 153 Recovery of Overpayment of Veteran's Benefits 160 Stockholders' Suits 190 Other Contract 195 Contract Product Liability 196 Franchise PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers' Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Personal Injury - Medical Malpractice PERSONAL INJURY 365 Personal Injury - Product Liability 367 Health Care/ Pharmaceutical Personal Injury Product Liability 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS FEDERAL TAX SUITS 710 Fair Labor Standards Act 720 Labor/Management. Relations 740 Railway Labor Act 751 Family and Medical Leave Act 790 Other Labor Litigation 791 Employee Retirement Income Security Act IMMIGRATION 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property 440 Other Civil Rights 441 Voting 442 Employment 443 Housing/ Accommodations 445 Amer. w/Disabilities - Employment 446 Amer. w/Disabilities - Other 448 Education Habeas Corpus: 463 Alien Detainee 510 Motions to Vacate Sentence 530 General 535 Death Penalty Other: 540 Mandamus & Other 550 Civil Rights 555 Prison Condition 560 Civil Detainee - Conditions of Confinement 462 Naturalization Application 465 Other Immigration Actions 870 Taxes (U.S. Plaintiff or Defendant) 871 IRS—Third Party 26 USC 7609 375 False Claims Act 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 850 Securities/Commodities/ Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters 895 Freedom of Information Act 896 Arbitration 899 Administrative Procedure Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes V. ORIGIN (Place an "X" in One Box Only) 1 Original Proceeding 2 Removed from State Court 3 Remanded from Appellate Court 4 Reinstated or Reopened 5 Transferred from Another District (specify) 6 Multidistrict Litigation Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 17 U.S.C. §101 et seq., 28 U.S.C. §2201 VI. CAUSE OF ACTION Brief description of cause: Declaratory judgment action related to application of copyright. VII. REQUESTED IN COMPLAINT: CHECK IF THIS IS A CLASS ACTION UNDER RULE 23, F.R.Cv.P. DEMAND $tt.00 CHECK YES only if demanded in complaint: JURY DEMAND: Yes No VIII. RELATED CASE(S) IF ANY (See instructions): JUDGE DOCKET NUMBER DATE SIGNATURE OF ATTORNEY OF RECORD FOR OFFICE USE ONLY RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE Case: 1:13-cv-01226 Document #: 2 Filed: 02/14/13 Page 1 of 2 PageID #:26
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JS 44 (Rev. 12/12) CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS LESLIE S. KLINGER, an individual
(b) County of Residence of First Listed Plaintiff Los Angeles (EXCEPT IN U.S. PLAINTIFF CASES)
(c) Attorneys (Firm Name, Address, and Telephone Number) Scott M. Gilbert/Kourtney A. Mulcahy Hinshaw & Culbertson LLP 222 N. LaSalle, Ste. 300, Chicago, IL 60601 312-704-320
DEFENDANTS CONAN DOYLE ESTATE, LTD.
County of Residence of First Listed Defendant Cook (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.
Attorneys (If Known)
II. BASIS OF JURISDICTION (Place an "X" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X" in One Box for Plaintiff)(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government Plaintiff
2 U.S. Government Defendant
3 Federal Question (U.S. Government Not a Party)
4 Diversity (Indicate Citizenship of Parties in Item III)
Citizen of This State
Citizen of Another State Citizen or Subject of a
Foreign Country
PTF DEF 1 1
2 2
3 3
Incorporated or Principal Place of Business In This State
Incorporated and Principal Place of Business In Another State
Foreign Nation
PTF DEF 4 4
5 5
6 6
IV. NATURE OF SUIT (Place an "X" in One Box Only) CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
422 Appeal 28 USC 158 423 Withdrawal
28 USC 157 PROPERTY RIGHTS
625 Drug Related Seizure of Property 21 USC 881
690 Other
820 Copyrights 830 Patent 840 Trademark
LABOR SOCIAL SECURITY
110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment
& Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted
PERSONAL PROPERTY 370 Other Fraud 371 Truth in Lending 380 Other Personal
Property Damage 385 Property Damage
Product Liability
861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS FEDERAL TAX SUITS
710 Fair Labor Standards Act
720 Labor/Management. Relations
740 Railway Labor Act 751 Family and Medical
Leave Act 790 Other Labor Litigation 791 Employee Retirement
Income Security Act
IMMIGRATION
210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property
440 Other Civil Rights 441 Voting 442 Employment 443 Housing/
Accommodations 445 Amer. w/Disabilities -
Employment 446 Amer. w/Disabilities -
Other 448 Education
Habeas Corpus: 463 Alien Detainee 510 Motions to Vacate
Sentence 530 General 535 Death Penalty Other: 540 Mandamus & Other 550 Civil Rights 555 Prison Condition 560 Civil Detainee -
Conditions of Confinement
462 Naturalization Application 465 Other Immigration
Actions
870 Taxes (U.S. Plaintiff or Defendant)
871 IRS—Third Party 26 USC 7609
375 False Claims Act 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and
Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 850 Securities/Commodities/
Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters 895 Freedom of Information
Act 896 Arbitration 899 Administrative Procedure
Act/Review or Appeal of Agency Decision
950 Constitutionality of State Statutes
V. ORIGIN (Place an "X" in One Box Only)
1 Original Proceeding
2 Removed from State Court
3 Remanded from Appellate Court
4 Reinstated or Reopened
5 Transferred from Another District (specify)
6 Multidistrict Litigation
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 17 U.S.C. §101 et seq., 28 U.S.C. §2201 VI. CAUSE OF ACTION Brief description of cause: Declaratory judgment action related to application of copyright.
VII. REQUESTED IN COMPLAINT:
CHECK IF THIS IS A CLASS ACTION UNDER RULE 23, F.R.Cv.P.
DEMAND $tt.00 CHECK YES only if demanded in complaint: JURY DEMAND: Yes No
VIII. RELATED CASE(S) IF ANY (See instructions): JUDGE DOCKET NUMBER
DATE
SIGNATURE OF ATTORNEY OF RECORD
FOR OFFICE USE ONLY RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)".
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive.
V. Origin. Place an "X" in one of the six boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
29. On or about November 28, 2012, and prior to the signing of the publishing
agreement for In the Company of Sherlock Holmes, Defendant’s Agent contacted Pegasus
and demanded that Plaintiffs and Pegasus enter into a licensing agreement with
Defendants on the same terms as the previous agreement with Random House under the
implied threat of an infringement action against Pegasus Books, King, Klinger and W. W.
Norton if a license were not obtained from Defendant.
30. On or about November 28, 2012, Pegasus Books replied to Defendant’s
Agent by pointing out that In the Company of Sherlock Holmes would include only such
characters and other story elements from the Canon that have already passed into the
public domain and would not use any characters or other story elements that first
appeared in one of the ten (10) stories that remain under copyright in the United States.
Pegasus Books also explained that it could not afford the same licensing terms as those
offered to Random House in connection with A Study in Sherlock.
31. On or about December 11, 2012, Defendant’s Agent replied and invited
“reasonable counter-proposals.” However, despite the knowledge of Defendant and
Defendant’s Agent that the Sherlock Holmes Story Elements are now in the public
domain,1 and without asserting that any characters or other story elements that remain
1 In June of 2004, the United States District Court for the Southern District of New York held that “at most…only the increments of expression added by" the [Ten] Stories, either to these two characters or any aspect of Sir Doyle's stories that are in the public domain and underlie plaintiff's works, are protected.” Pannonia Farms, Inc. v. USA Cable, 2004 U.S. Dist. LEXIS 23015, 29-30 (S.D.N.Y. June 7, 2004), citing Silverman v. CBS Inc., 870 F.2d 40, 50 (2d Cir. 1989). The court continued, “Storylines, dialogue, characters and character traits newly introduced by the [Ten] Stories are examples of added contributions susceptible to copyright protection. Plaintiff, however, does not claim infringement of any creative element particular exclusively and originally to the [Ten] Stories. Defendants' Movie therefore is not derived from any material that plaintiff's
under copyright would be used, Defendant’s Agent threatened to wrongfully interfere
with the publication of In the Company of Sherlock Holmes, which was then identified by
the working title Study in Sherlock II, as follows: “If you proceed instead to bring out
Study in Sherlock II unlicensed, do not expect to see it offered for sale by Amazon,
Barnes & Noble, and similar retailers. We work with those company’s routinely to weed
out unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate to do
so with your book as well.”
32. On or about December 11, 2012, Pegasus Books informed Defendant’s
Agent that “[w]e are advised that no license is necessary for the book we are preparing
for publication, and we will not be responding to any further communications on this
matter.” No further communications have been exchanged between Defendant, on one
side, and Klinger, King or Pegasus, on the other side, through the date of filing of this
Complaint.
33. As a result of the demands and threats of Defendant and Defendant’s Agent
as alleged above, Plaintiff has a reasonable apprehension that Defendant will file suit
against him, his co-editor, and their licensees in the United States if In the Company of
Sherlock Holmes is published.
34. Pegasus Books, as a direct and proximate result of the threats and demands
claimed copyrights could potentially encompass. Lacking an allegation of infringement upon plaintiff's own creative "embellishments and additions" to the Holmes and Watson characters, Filmvideo Releasing Corp. v. Hastings, 668 F.2d 91, 92 (2d Cir. 1981), plaintiff could not have reasonably expected success on its copyright claim.” The foregoing case was brought by a claimant to the Conan Doyle Rights other than Defendant, but the principles of copyright law are applicable in the present
Attorney for Plaintiff Scott M. Gilbert (#06282951) Kourtney A. Mulcahy (#6276695) Hinshaw & Culbertson LLP 222 N. LaSalle Street Suite 300 Chicago, IL 60601 312-704-3000 312-704-3001 (fax)
Plaintiff demands a jury trial on all issues triable to a jury.
Dated: February 14, 2013
Scott M. Gilbert (#06282951) Kourtney A. Mulcahy (#6276695) Hinshaw & Culbertson LLP 222 N. LaSalle Street Suite 300 Chicago, IL 60601 312-704-3000 312-704-3001 (fax)