When it comes to the patent process and copyright issues, navigating the waters of intellectual property can be tricky for creators. However, thanks to the seventh U.S. circuit court of appeals in Chicago, one mystery has been solved: the right to use the character Sherlock Holmes is firmly in the public domain.
The beloved detective, created over 100 years ago by writer Sir Arthur Conan Doyle, has been the subject of four novels and 56 short stories written by Doyle — and countless other stories, films, and even television series, along with other media, created by others. Notable recent examples include the Sherlock Holmes films featuring Robert Downey, Jr. and Jude Law and the two TV series based on Holmes: one from the BBC (Sherlock) and one on CBS (Elementary).
Because the copyright, once owned by Doyle’s estate, has expired on the character and his companion Dr. Watson, the court ruled that Holmes’s estate could not longer enforce its licensing fee on others who wish to use the character.
The decision stems from a history of contact between Doyle’s estate and Leslie Klinger, who in 2011 was about to publish A Study in Sherlock: Stories Inspired by the Sherlock Holmes Canon, which featured Doyle’s characters. Klinger was informed by the estate that his publisher, Random House, was to pay $5,000 in licensing fees to use Holmes.
Random House paid; Klinger, on the other hand, had still believed the Holmes was (and should be) in the public domain.
Because Klinger had begun a sequel to his first book, the estate threatened to sue once more if they didn’t receive a licensing fee again. The estate wrote to Klinger, saying that if he published his sequel he would not “see it offered for sale by Amazon, Barnes & Noble and similar retailers. We work with those compan[ies] routinely to weed out unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate to do so with your book as well.”
In response, Klinger sued the estate, arguing that he wasn’t infringing on the 10 Holmes stories that were still under the 95-year copyright protection. According to U.S. copyright laws, a copyright can last 95 years or the life of a creator plus 70 years, depending on when it was published and whether it was a hired work, among other factors.
After an initial court battle, which Doyle’s estate didn’t attend, Klinger won, but the estate appealed, arguing for greater copyright protection on the grounds that Holmes became a more “round” character in his last 10 stories, as opposed to the “flat” character he had been before.
Judge Richard A. Posner and the other judges of the seventh circuit court compared the estate’s argument to extending the copyright on the first three Star Wars films, Episodes IV, V and VI, simply because Episodes I, II and III had been released later. Posner wrote, “We don’t see how that can justify extending the expired copyright on the flatter character.”
In their decision, the judges opined that “It appears that the Doyle estate is concerned not with specific alterations in the depiction of Holmes or Watson in Holmes-Watson stories written by authors other than Arthur Conan Doyle, but with any such story that is published without payment to the estate of a licensing fee.”
The court’s ruling has a variety of legal implications, especially when it comes to public domain works and other types of intellectual property.
The decision is good for authors, too, notes Molly Van Houweling, co-founder of the Authors Alliance. She cites Posner’s ruling, which says that because many “copyrighted works include some, and often a great deal of, public domain material–words, phrases, data, entire sentences, quoted material, and so forth,” authors would have more work to do to obtain licenses to use that information rather than drawing on public domain information. “The smaller the public domain, the more work is involved in the creation of a new work,” Posner stated.
As for Klinger, he intends to publish his book this November. Benjamin Allison, a lawyer for Doyle’s estate, says that no decision has been made on an appeal.