June 18, 2014
Court confirms that Sherlock Holmes is (mostly) in the public domain
by Nick Davies
A federal court ruled on Monday that the character Sherlock Holmes is, in fact, part of the public domain, Abby Abrams writes for Time. This comes in the wake of a lawsuit against the estate of Sir Arthur Conan Doyle filed by Leslie Klinger over the right to publish a collection of stories inspired by Doyle’s characters.
Because Doyle wrote Sherlock Holmes stories and novels over such a long period, the copyrights on the individual works are expiring in staggered intervals. Most of them have passed the 95-year limit, with only ten stories published between 1923-1927 still under copyright protection in the US. Klinger butted heads with the Doyle estate in 2011 when he was working on A Study in Sherlock: Stories Inspired by the Holmes Canon, when his publisher, Random House, agreed to pay a $5,000 licensing fee in order to publish the book.
But when the estate threatened legal action unless Klinger paid a similar fee for the sequel, In the Company of Sherlock Holmes, he decided to take the matter to court himself, arguing that he hadn’t drawn on any material from those final ten stories (whose copyrights will all expire by 2022). That’s a difficult assertion to prove objectively, and the Doyle estate countered that those stories “greatly helped to flesh out the character of Sherlock Holmes, so the estate’s hold on the character should extend until the copyright on the last story expired.”
Judge Richard Posner came down on Klinger’s side, ruling that it wasn’t reasonable for the estate to claim 135 years of copyright protection, in a decision that cited the works of William Shakespeare as well as Star Wars:
Repeatedly at the oral argument the estate’s lawyer dramatized the concept of a “round” character by describing large circles with his arms. And the additional details about Holmes and Watson in the ten late stories do indeed make for a more “rounded,” in the sense of a fuller, portrayal of these characters. In much the same way we learn things about Sir John Falstaff in Henry IV, Part 2, in Henry V (though he doesn’t actually appear in that play but is merely discussed in it), and in The Merry Wives of Windsor, that were not remarked in his first appearance, in Henry IV, Part 1. Notice also that Henry V, in which Falstaff is reported as dying, precedes The Merry Wives, in which he is very much alive. Likewise the ten last Sherlock Holmes stories all are set before 1914, which was the last year in which the other stories were set. One of the ten, The Adventure of the Veiled Lodger (published in 1927), is set in 1896. See 2 William S. Baring-Gould, The Annotated Sherlock Holmes 453 (1967). Thus a more rounded Holmes or Watson (or Falstaff) is found in a later work depicting a younger person. We don’t see how that can justify extending the expired copyright on the flatter character. A contemporary example is the six Star Wars movies: Episodes IV, V, and VI were produced before I, II, and III. The Doyle estate would presumably argue that the copyrights on the characters as portrayed in IV, V, and VI will not expire until the copyrights on I, II, and III expire.
You can read the full decision on the case here.
Nick Davies was a publicist at Melville House.