Verbatim: A U.S. Court Sets Sherlock Holmes Free

Benedict Cumberbatch as Sherlock Holmes in the current BBC series. Publicity photo by Hartswood Films via Vlickr, by Robert Viglasky

Benedict Cumberbatch as Sherlock Holmes in the BBC TV series Sherlock. Publicity photo by Hartswood Films via Vlickr, by Robert Viglasky

WHAT: 

America’s highest court freed the character of Sherlock Holmes from copyright restrictions sought by the estate of his late creator, Sir Arthur Conan Doyle.

WHO:

The estate of Sir Arthur Conan Doyle vs author Leslie S. Klinger, and an erudite judge

WHERE:

New York, Chicago, and in fantasy worlds inhabited by Sherlock Holmes

 

Portrait of Sir Arthur Conan Doyle, the late Scottish poet, novelist and physician who created Sherlock Holmes.

Portrait of Sir Arthur Conan Doyle, the late Scottish poet, novelist and physician who created Sherlock Holmes.

WHEN:

The United States Supreme Court refused on November 3, 2014, to hear the estate’s appeal of a ruling by a lower court. The top court’s refusal means the decision by the United States Court of Appeals For the Seventh Circuit in Chicago, on June 16, 2014, stands.

WHY:

Doyle’s estate charged creators a licence fee to use Sherlock Holmes’ character in derivative works. The estate threatened to sue distributors if they sold a new book planned by Klinger, who had not obtained a licence. Klinger eventually sued the estate. 

 

From 1887 to 1927, Sir Arthur Conan Doyle published 56 stories and four novels about his creation, the drug-addicted, brilliant, quirky and severe detective Sherlock Holmes. The 95-year copyright has expired for all but the final 10 stories, published between 1923 and 1927. In general after copyright expires, the work becomes a part of the public domain and can be freely copied and sold. 

There is no argument that Doyle’s estate, Conan Doyle Estate, Ltd., holds copyright on the final 10 stories. It is the essential character of Holmes, however, that was in dispute. 

The ruling was written by Richard Allen Posner, a legal theorist, economist, lecturer at the University of Chicago Law School, and judge on the United States Court of Appeals for the Seventh Circuit. It is wry, and refreshingly erudite.

– Deborah Jones

 

Ruling, June, 2014, LESLIE S. KLINGER v.CONAN DOYLE ESTATE, LTD., Defendant-Appellant. United States Court of Appeals for the Seventh Circuit (Upheld November 3, 2014, by the U.S. Supreme Court). Excerpts:

Leslie Klinger, the appellee in this case, co- edited an anthology called A Study in Sherlock: Stories Inspired by the Sherlock Holmes Canon (2011) — “canon” referring to the 60 stories and novels written by Arthur Conan Doyle, as opposed to later works, by other writers, featuring characters who had appeared in the canonical works. Klinger’s anthology consisted of stories written by modern authors but inspired by, and in most instances depicting, the genius detective Sherlock Holmes and his awed sidekick Dr. Watson. Klinger didn’t think he needed a license from the Doyle estate to publish these stories, since the copyrights on most of the works in the “canon” had expired. But the estate told Random House, which had agreed to publish Klinger’s book, that it would have to pay the estate $5000 for a copyright license. Random House bowed to the demand, obtained the license, and published the book.

Klinger and his co-editor decided to create a sequel to A Study in Sherlock, to be called In the Company of Sherlock Holmes. They entered into negotiations with Pegasus Books for the publication of the book and W.W. Norton & Company for distribution of it to booksellers. Although the editors hadn’t finished the book, the companies could estimate its likely commercial success from the success of its predecessor, and thus decide in advance whether to publish and distribute it. But the Doyle estate learned of the project and told Pegasus, as it had told Random House, that Pegasus would have to obtain a license from the estate in order to be legally authorized to publish the new book. The estate didn’t threaten to sue Pegasus for copyright infringement if the publisher didn’t obtain a license, but did threaten to prevent distribution of the book. It did not mince words. It told Pegasus: “If you proceed instead to bring out Study in Sherlock II [the original title of In the Company of Sherlock Holmes] unlicensed, do not expect to 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.” There was also a latent threat to sue Pegasus for copyright infringement if it published Klinger‘s book without a license, and to sue Internet service providers who distributed it. See Digital Millennium Copy- right Act, 17 U.S.C. § 512(i)(1)(A). Pegasus yielded to the threat, as Random House had done, and refused to publish In the Company of Sherlock Holmes unless and until Klinger obtained a license from the Doyle estate.

Instead of obtaining a license, Klinger sued the estate, seeking a declaratory judgment that he is free to use material in the 50 Sherlock Holmes stories and novels that are no longer under copyright, though he may use nothing in the 10 stories still under copyright that has sufficient originality to be copyrightable …

There were complex legal manoeuvres: Klinger pursued the case even after the estate defaulted on his original complaint, by filing a motion for summary judgment. That order was granted, and the appeal by the Doyle estate of that summary judgement is the subject of this decision. 

The estate argued, in part, that copyright on a “complex” character in a story — whose full complexity is not revealed until a later story — remains under copyright until the last story enters the public domain.

In essence, the estate claimed control over the copyright of the character of Sherlock Holmes until 95 years had passed since Doyle’s last story was published.

(The estate also argued, unsuccessfully, that the court had no jurisdiction.)

…  and we come to the merits, where the issue as we said is whether copyright protection of a fictional character can be extended beyond the expiration of the copyright on it because the author altered the character in a subsequent work. In such a case, the Doyle estate contends, the original character cannot lawfully be copied without a license from the writer until the copyright on the later work, in which that character appears in a different form, expires. 

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 authors … 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.

… The ten Holmes-Watson stories in which copyright persists are derivative from the earlier stories, so only original elements added in the later stories remain protected. …  But there is no such conflict in this case.

… extending copyright protection is a two- edged sword from the standpoint of inducing creativity, as it would reduce the incentive of subsequent authors to create derivative works (such as new versions of popular fictional characters like Holmes and Watson) by shrinking the public domain. For the longer the copyright term is, the less public-domain material there will be and so the greater will be the cost of authorship, because authors will have to obtain licenses from copyright holders for more material — as illustrated by the estate’s demand in this case for a license fee from Pegasus.

Most copyrighted works include some, and often a great deal of, public domain material– words, phrases, data, entire sentences, quoted material, and so forth. The smaller the public domain, the more work is involved in the creation of a new work. The defendant’s proposed rule would also encourage authors to continue to write stories involving old characters in an effort to prolong copyright protection, rather than encouraging them to create stories with entirely new characters. The effect would be to discourage creativity…. 

The estate asks us to distinguish between “flat” and “round” fictional characters  … The estate defines “flat” characters oddly, as ones completely and finally described in the first works in which they appear. Flat characters thus don’t evolve. Round characters do; Holmes and Watson, the estate argues, were not fully rounded off until the last story written by Doyle. What this has to do with copyright law eludes us. …

It’s not unusual for an author to use the same character in successive works, yet with differences resulting, in the simplest case, just from aging. In Shakespeare’s two Henry IV plays, the Henry who later becomes Henry V is the Prince of Wales, hence Crown Prince of England; in Henry V he is the King of England. Were Henry IV in the public domain and Henry V under copyright, Henry Prince of Wales could be copied without Shakespeare’s permission but not Henry V. Could the Doyle estate doubt this? Could it think Holmes a more complex and altered character than Henry?

The more vague, the less “complete,” a character, the less likely it is to qualify for copyright protection. An author “could not copyright a character described merely as an unexpectedly knowledgeable old wino,” but could copyright “a character that has a specific name and a specific appearance. … Holmes and Watson were distinctive characters and therefore copyrightable. They were “in- complete” 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. 

We can imagine the Doyle estate being concerned that a modern author might write a story in which Sherlock Holmes was disparaged …  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.

With the net effect on creativity of extending the copy- right protection of literary characters to the extraordinary lengths urged by the estate so uncertain, and no legal grounds suggested for extending copyright protection beyond the limits fixed by Congress, the estate’s appeal borders on the quixotic. 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. 

References:

Ruling: In the United States Court of Appeals For the Seventh Circuit No. 14-1128 LESLIE S. KLINGER, v. CONAN DOYLE ESTATE, LTD., Defendant-Appellant: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D06-16/C:14-1128:J:Posner:aut:T:fnOp:N:1363624:S:0

Recommended:

A Point of View: The enduring appeal of Sherlock Holmes, By British philosopher John Gray, in the BBC News Magazine

“Aside from a few relics of Victorian rationalism who find a curious comfort in Darwinism, most of us now accept that reason can’t give meaning or purpose to life. If we’re not content with the process of living itself, we need myths and myths very often contain contradictions.

Holmes is one such myth. Seeming to find order in the chaos of events by using purely rational methods, he actually demonstrates the enduring power of magic.

An exemplar of logic who lives by guesswork, a man who stands apart from other human beings but who is moved by a sense of human decency, Holmes embodies the modern romance of reason – a myth we no longer believe in, but find it hard to live without.”

Wikipedia page for Sir Arthur Conan Doyle: http://en.wikipedia.org/wiki/Arthur_Conan_Doyle

 

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