Not So Elementary

NOT SO ELEMENTARY: THE CURIOUS CASE OF SHERLOCK HOLMES

Fresh appeal adds to mystery of literary usage

By Martin Hickes

IT remains quite a three pipe problem.

WHILE the copyright of Arthur Conan Doyle’s famous Sherlock Holmes stories in the UK expired at the turn of the century, a legal battle continues to rage in the United States over the usage of the world’s best known consulting detective in fiction and the media.

The last copyright on ACD's work in the United Kingdom expired at the end of the year 2000.

In the United States, however, the only Sherlock Holmes stories remaining in copyright are portions of The Casebook of Sherlock Holmes, the last set of Holmes stories Sir Arthur Conan Doyle wrote.

A legal challenge that would have invalidated a 1998 extension to the length of copyright — putting Sherlock Holmes into the public domain immediately — was thrown out by the Supreme Court January 15, 2003. The case seemed closed.

But now, a US ruling, just before Christmas, and a fresh appeal against such on Jan 21, means the game is afoot once more.

It’s important as the ruling seems to open the way for those who wish to create new works using Holmes and Watson; but also could have ramifications for those who use familiar, established literary characters in new adventures and fiction.

The American copyrights are owned by the Conan Doyle Estate Ltd, which is appealing against court rule.

On December 23, 2013, a U.S. District Court ruled in the case of Klinger v. Conan Doyle Estate, Ltd. that U.S. copyright protection had expired on all elements of the Holmes canon that were first introduced before 1923 — including the characters of Holmes and Watson.

The court ruled that the Holmes and Watson characters as described in the "story elements" that stem from most of the stories (that is those published before 1923) which represents the bulk of the canon are now in the public domain.

The Court’s ruling stated, in brief, that creators are free to use the characters of Holmes and Watson without licensing them from the Conan Doyle Estate.

The Court cautioned that new stories about the pair can’t use elements that appear exclusively in the ten post-1922 stories by Conan Doyle (those from the Casebook that remain in copyright in the US). However, that elements from the many pre-1923 stories are in the public domain.

The ruling was made on Dec 23, and lawyers for the Conan Doyle Estate, reacted strongly and said they would appeal.

A spokesman, Benjamin Allison, of New Mexico legal firm, SutinThayerBrowne, representing the ACD Estate said:

“A recent ruling (Dec) from a Chicago trial court held that part of Sherlock Holmes's and Dr. Watson's literary characters are in the public domain, but the decision continues to protect all characteristics of the two men developed in post-1922 stories by Sir Arthur Conan Doyle. 

“The Conan Doyle Estate Ltd. argued that because the Holmes and Watson characters were not completed by Sir Arthur until a series of stories whose copyrights continue through 2022, the characters remain protected through 2022. 

“The ruling did not provide a direct answer to this argument and appeared not to acknowledge the basic copyright rule that highly delineated characters are entitled to their own copyright. The Estate hopes to appeal the decision so that Sherlock Holmes and many other significant characters created over a series of novels or stories receive protection for the full copyright term intended by Congress.

“In the meantime, even under the current ruling from the Chicago trial court, all development of the Holmes and Watson characters by Sir Arthur in ten post-1922 stories remain fully protected by copyright. 

“These ten stories—set at a variety of earlier points in the two men's fictional lives—contain significant elements of both characters, including Sherlock Holmes's mellowing personality, the change in Holmes’s and Watson's relationship from flatmates and collaborators to closest friends, and a host of other developments, skills, and elements of background.

“While plaintiff Leslie Klinger sought a ruling that some of these character traits were free for all to use, the Court rejected Mr. Klinger's effort in this regard and held that all such characteristics of Holmes and Watson are protected.

Just days ago, on Jan 21, the Conan Doyle Estate, the US copyright holders announced it was launching an appeal.

Mr Allison, representing, said:

“The Conan Doyle Estate Ltd has today appealed to the Seventh Circuit Court of Appeals from a lower court decision in Klinger v Conan Doyle Estate Ltd.  The lower court decision held that Sherlock Holmes and Dr. Watson may not be protected by copyright even though ten original stories by Conan Doyle developing the Holmes and Watson characters remain under copyright. The lower court did rule that using character developments from these ten stories requires the Estate’s permission, but stated it was not addressing the copyright status of Holmes’s character.

“The lower court decision would fracture Conan Doyle's characters into protected and unprotected parts.  The Conan Doyle Estate believes that Holmes and Watson should be protected as the fully delineated characters their author created. 

“The Holmes and Watson characters were not completed by Conan Doyle until 1927, and Congress has provided a copyright term of 95 years for such characters. The Estate will ask the Seventh Circuit to protect Conan Doyle’s literary characters for the full term Congress provided.

 “This important decision is likely to affect copyright protection for many other longstanding series characters. The case is particularly significant because Holmes and Watson are two of the world’s most loved and recognized characters, thanks to the creative genius of Conan Doyle’s writing.  The Doyle family intends to continue to foster creative new uses of the characters by others, as recent television and motion picture series, novels, and other programs demonstrate.”

Richard Doyle, a director of Conan Doyle Estate Ltd, commented, “Sherlock has been depicted in various and wonderful ways with the Estate’s consent and support. We want to make sure that future generations can admire and enjoy Sherlock and Watson as much as past generations have.”

The character of Sherlock Holmes has immense appeal in the United States.

Betsy Rosenblatt, a lawyer and professor at Whittier Law School, wrote about the case on BakerStreetBabes.com, an international site dedicated to Holmes.  Commenting on the original ruling, she said:

 “This Dec ruling is in line with a number of earlier cases in holding that characters may enter the public domain even while certain stories featuring those characters may remain protected.

“It’s a reasonable rule: otherwise, copyright owners could essentially create eternal copyright protection for characters simply by continuing to publish new stories about them. U.S. copyright expiration is very complicated—depending on when a work was created, copyright term may depend on things like whether the work was published with a copyright notice, whether copyright registration was renewed, and when the author died/dies—but copyright protection always expires, eventually.

“This ruling reminds us that, as the court said ‘where an author has used the same character in a series of works, some of which are in the public domain, the public is free to copy story elements from the public domain works.’

“The same rule, applied broadly, would free not only Holmes and Watson, but also other characters created early in the 20th century, like G.K. Chesterton’s Father Brown, Edgar Rice Burroughs’ Tarzan, and Agatha Christie’s Hercule Poirot.

“The entire Holmes Canon was already in the public domain everywhere but the United States. So people who have been making Holmesian fanworks outside the U.S. have been in the copyright clear for quite some time.

“Indeed, the BBC didn’t have to get permission to make Sherlock, although they did obtain a license from the Conan Doyle Estate, Ltd. (“CDE”) to distribute the show in the U.S.

“Therefore, there’s nothing in this ruling that could harm BBC Sherlock.

 “U.S. Sherlockians have always relied on copyright fair use principles to support the creation of fanworks.

“That reliance is still necessary for most fanworks related to Holmes, because copyright not only still protects the post-1923 works, but also (obviously) the sources for many Holmes fandoms, such as the Warner Brothers films, Elementary, and BBC Sherlock.

“But the fact that the ‘original-recipe Holmes and Watson’ are in the public domain is still very good for Sherlockiana, and especially for fans of the original Canon, as their right to make fanworks based on the pre-1923 stories is now unassailable. Indeed, since most of the traits of Holmes and Watson, and most of the stories, were introduced before 1923, fan creators will seldom even have to consider whether their Doyle Canon fanworks are fair use.”

More can be found on Sherlockian copyright at http://www.sherlockian.net/acd/copyright.html and www.bakerstreetbabes.com

ENDS

  • In the US, all works published before 1923 are in the public domain, and those published afterwards are protected by copyright for a maximum of 95 years after the death of the author. In the UK, copyright runs for the life of the author plus 70 years, meaning that all works written by Conan Doyle, who died in 1930, have been out of copyright for more than a decade.
  • Leslie Klinger filed a suit in February with the aim of establishing that the characters of Holmes and Watson are already in the public domain in the US, after he was asked to pay for a licence to use them in his planned book In The Company of Sherlock Holmes. 

NOY
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