Comedian Dmitri Martin has a great joke about the expression “sort of.” Although normally a fairly meaningless expression, saying “sort of” after certain things suddenly becomes very important. Such as after the phrase “I love you,” or “You’re going to live,” or “It’s a boy.” I immediately thought of this joke after reading a recent order issued by a federal court in Illinois. The order declared that Sherlock Holmes, Dr. Watson, 221B Baker Street, the evil Professor Moriarty, and other elements of Sir Arthur Conan Doyle’s beloved works have fallen into the public domain.
A Study in Sherlock
A few years ago, Sherlock Holmes scholars Laurie King and Leslie Klinger co-edited A Study in Sherlock, an anthology of new and original short stories about Sherlock Holmes written by eighteen contemporary authors. Prior to being published, however, the estate of Sir Arthur Conan Doyle demanded that Random House, the publisher, obtain a copyright license. While King and Klinger believed that the law did not require a license, Random House disagreed and entered into a license agreement with the estate notwithstanding the editors’ belief.
As a sequel to A Study in Sherlock, Klinger and King co-edited another anthology of new and original Sherlock stories, currently titled, In the Company of Sherlock Holmes. This time, Klinger and King went with a different publisher, Pegasus Books, which, like Random House, also ran into licensing demands from the Conan Doyle estate. Fearing litigation, Pegasus Books refused to finalize its publishing contract with Klinger and King.
Knowing that there is nothing more deceptive than an obvious fact, Klinger and King turned to the federal courts for a judicial declaration of what seemed quite obvious to them: that certain characters and story elements from the Sherlock Holmes canon have indeed fallen into the public domain. Needless to say, the estate of Conan Doyle disagreed.
The Game is Afoot
As we have written about before, fictional characters can be said to achieve their own sphere of copyright protection if the author sufficiently delineates the character. Such protection lasts for as long as the underlying works describing the character remain protected by copyright. Characters like Tarzan, Superman, Godzilla, James Bond, and even Freddy Krueger’s distinctive glove and the Batmobile have all been adjudged sufficiently delineated to achieve copyright protection. It is elementary, therefore, that Sherlock Holmes, the most famous detective of all time, should be protected by copyright, too, right?
The rub is that the Sherlock Holmes character developed over time, and some of the stories describing Sherlock (i.e., those published prior to 1923) have fallen into the public domain. According to the district court judge in Illinois, this means that the story elements from the pre-1923 stories are now part of the public domain and free for anyone to use. The post-1923 story elements, on the other hand—what lawyers refer to as distinguishable “increments of expression”—remain protected by copyright. As the court acknowledged, this ruling effectively dismantles Sir Arthur Conan Doyle’s characters into two versions: the public domain versions, which anyone may use; and the copyrighted versions, which only the estate of Conan Doyle and its licensees may use.
You might be wondering: how did the court arrive at this somewhat strange result?
The Incremental Expression Rule
As we have also written about before, the “freedom to make new works based on public domain materials ends where the resulting derivative work comes into conflict with a valid copyright.” In other words, any new “increments of expression” that Sir Arthur Conan Doyle added to the Sherlock characters after 1923 (i.e., in stories that are still protected by copyright law) would be the exclusive property of the estate of Conan Doyle and its licensees.
The example I like to use to illustrate this concept is Dorothy Gale’s ruby slippers. In the L. Frank Baum book (which is now in the public domain), Dorothy wears silver slippers, whereas in the 1939 film (which is not in the public domain), the filmmakers transformed them into ruby slippers. Because the ruby slippers are a widely identifiable characteristic of the film-Dorothy—much like Freddy Krueger’s distinctive glove—creating a new Dorothy character with ruby slippers could potentially run afoul of Warner Brothers’ copyright. Another good example I like to use is the “Heigh Ho” song sung in the 1937 Disney film Snow White and the Seven Dwarfs. Although the Grimms’ fairy tale of Snow White, Sneewittchen, is now in the public domain, the Disney film and song are not. (And, given Disney’s protectiveness of its IP, no one can use their movie songs without permission—except Immortal Technique, of course, who does not give a @#*% [Warning: link contains explicit lyrics]).
In the case of Sherlock Holmes, the plaintiffs argued that even the post-1923 additions to the Sherlock characters were not subject to copyright protection. Specifically, Dr. Watson’s second wife, Dr. Watson’s background as an athlete, and Sherlock’s retirement from his detective agency, all derived from post-1923 stories. According to the plaintiffs, these were not characteristics, but “events,” and therefore not subject to copyright protection. The court disagreed, however, and concluded that the post-1923 additions were, in fact, “character, character trait, and storyline” (protected by copyright law) as opposed to “ideas, plots, dramatic situations and events” (not protected by copyright law). Translated back into legal mumbo jumbo, these are “increments of expression” that the estate of Conan Doyle still controls.
The Estate of Conan Doyle Vows to Appeal
Although Sherlock may be “the last and highest court of appeal in detection,” when it comes to legal matters, the courts of the United States have their own appellate system. And, as it happens, the estate of Conan Doyle recently issued a press release highlighting the aspects of protection the court preserved, but also stating that “[t]he 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.” The estate’s press release is also quick to point out the curious incident of footnote number eight in the court’s opinion which reads, in part, “…[plaintiff] does not seek a judicial determination of the copyright status of the Sherlock Holmes character, however, and thus the Court does not address this issue.” I say this footnote is “curious” because the court did very much seem to address that issue.
I guess it’s fair to say that the court addressed the issue. Sort of.