Tuesday, May 13, 2014

A Study in Copyright: Sherlock Holmes, Arthur Conan Doyle, and the Public Domain

Photo Credit: Wikimedia Commons
Good news Sherlock Holmes fans! A judge ruled earlier this year that Arthur Conan Doyle’s stories of the famous detective have entered the public domain here in the United States.  However, there’s a slight catch.  Character specifics from the last ten stories in the Sherlock Holmes series are still protected at least for the next eight years.

Conan Doyle’s novels and short stories of Sherlock Holmes were published in the United States prior to 1923.  According to copyright law, works published prior to January 1, 1923 in the U.S. are considered to be in the public domain.   However, the argument made by the Conan Doyle estate is that the characters did not enter into the public domain because there were ten short stories which were published after the January 1, 1923 cutoff date.   

The case started when author Leslie S. Klinger sought to publish a collection of stories inspired by Sherlock Holmes titled In the Company of Sherlock Holmes.  Although Klinger paid a $5,000 licensing fee to the Conan Doyle estate, the publication of this collection of stories was delayed when the estate requested a second fee. 

Klinger filed a civil complaint against the Conan Doyle estate last year, arguing that the Sherlock Holmes characters are in the public domain because the defining characteristics of the series can be found in the first fifty novels and stories.  The Conan Doyle estate argued that the characters were “continually developed” over the course of both pre- and post-1923 stories so the copyright of the last ten stories should extend to the characters. 

Chief Judge Ruben Castillo of the Northern District of Illinois relied on a similar case, Silverman v. CBS, concerning Amos n’ Andy radio scripts which lapsed into the public domain prior to 1948, but remained protected by copyright post-1948.  The court held that the characters in the pre-1948 scripts were public domain, but any new character traits or elements introduced in the post-1948 scripts remained under copyright.  Based on this case, Judge Castillo decided that the Sherlock Holmes stories have indeed entered the public domain. 

The case may not end here as the Conan Doyle estate plans to appeal the decision, arguing that a literary character really does “not become entirely formed until the author has finished the last story.”  

Photo Credit: Library of Congress
 In the meantime, all but the last ten Sherlock Holmes stories are free of copyright, allowing all you Holmes fans and creative writers the option of writing your own stories based on the Sherlock Holmes characters without getting permission or paying a fee to the Conan Doyle estate.  Could we be seeing more interpretations in film and literature of Sherlock Holmes in the future?  It’s certainly possible.

For more information on the case, check out the court opinion, Klinger v. Conan Doyle Estate, 2013 WL 6824923, available on Westlaw, or the New York Law Journal article “Sherlock Holmes and the Public Domain: Not so Elementary?” by Robert W. Clarida & Robert J. Bernstein, available via LexisNexis Advance.

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