by Raizel Liebler
Like Moriarty (sometimes), the Estate of Sir Arthur Conan Doyle, returned, to attempt to change the lower court ruling, as I had discussed here in Copyright is Incremental, Sherlock: Klinger v. Conan Doyle Estate.
The decision in the Seventh Circuit, Klinger v. Conan Doyle Estate, Ltd., 14-1128 (7th Cir. June 16, 2014), as written by Posner has some choice phrasing to get to the overall conclusion — Sherlock Holmes, the character, is in the public domain.
Overall, the conclusion is very straightforward:
We cannot find any basis in statute or case law for extending a copyright beyond its expiration. When a story falls into the public domain, story elements-including characters covered by the expired copyright-become fair game for follow-on …. The copyrights on the derivative works, corresponding to the copyrights on the ten last Sherlock Holmes stories, were not extended by virtue of the incremental additions of originality in the derivative works.
But the decision also is concerned about the possibility of unending copyright, as proposed by the estate — the idea of adding little bitty bits of character development that could extend copyright long beyond its present U.S. timeframe of the life of the author, plus seventy years. The court calls the estate’s argument “quixotic” because
The spectre of perpetual, or at least nearly perpetual, copyright … looms, once one realizes that the Doyle estate is seeking 135 years (1887–2022) of copyright protection for the character of Sherlock Holmes as depicted in the first Sherlock Holmes story.
But there is also discussion of what it means for a character to be complete — addressing the estate’s argument of “rounded” characters. The court uses the example of Shakespearean characters, specifically Falstaff, to show how the estate’s argument fails — despite the additional details added from a later written, but earlier set copyrighted story. Then the court uses an example touched on during oral argument:
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.
The court also says that it is easy to distinguish the non-copyrighted work from the copyrighted work, using the example of Watson’s changed views of dogs in the later stories. These additions are indeed covered by copyright. However,
From the outset of the series of Arthur Conan Doyle stories and novels that began in 1887 Holmes and Watson were distinctive characters and therefore copyrightable. They were “incomplete” only in the sense that Doyle might want to (and later did) add additional features to their portrayals. The resulting somewhat altered characters were derivative works, the additional features of which that were added in the ten late stories being protected by the copyrights on those stories. The alterations do not revive the expired copyrights on the original characters.
Of course, Posner throws in references to possible confusion by readers, similar to trademark dilution — and then dismisses the argument as spurious that a reader would have issues “puzzling confusedly over the ‘true’ character of Sherlock Holmes.”
However, Posner recognizes that the interest of the estate is not one comparable to moral rights — wanting to protect the “dignity” of the Sherlock Holmes character. Instead it is about money, and rent seeking from all corners:
Anyway 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. (emphasis in original)
OK, so for anyone still reading — warning — procedural issues below!
For anyone who is concerned about procedural issues, the court also dismisses the idea that this claim is not properly brought in a timely fashion. The court holds that requiring an author, like Klinger here,
defer suit until he finishes the book would gratuitously discourage declaratory-judgment suits by authors and publishers threatened with suits for copyright infringement or with boycotts by distributors—and so would discourage authors from ever writing such works in the first place.
The timing issue about how Klinger proceeded following an appropriate path for litigation was addressed by the court:
Had Klinger had no idea how the Doyle estate would react to the publication of In the Company of Sherlock Holmes, he could not have sought a declaratory judgment, because he would not have been able to demonstrate that there was an actual dispute. …. But the Doyle estate had made clear that if Klinger succeeded in getting his book published the estate would try to prevent it from being sold by asking Amazon and the other big book retailers not to carry it, implicitly threatening to sue the publisher, as well as Klinger and his co-editor, for copyright infringement if they defied its threat. The twin threats—to block the distribution of the book by major retailers and to sue for copyright infringement—created an actual rather than merely a potential controversy.
So this case will likely be cited not only for its impact on the copyright of characters and copyright terms, but for how it addresses the “case or controversy” properly brought to a federal court issues.
Summary: Sherlock Holmes, the character, is in the public domain. If you want to create anything based in the Holmesian universe, stay away from the danger zone of the ten still copyrighted stories. For example, if you want to create a k-pop concept album only vaguely based on Sherlock Holmes, but named after him (with a computer named iWatson), you won’t need to pay licensing fees to the estate.