Seventh Circuit says Sherlock Holmes is still copyright-free


A district court decision declaring that the character of Sherlock Holmes is copyright-free was affirmed by the U.S. Court of Appeals for the Seventh Circuit in a unanimous decision written by Circuit Judge Richard Posner. The court fully agreed with the district court’s conclusion that the Doyle estate had no basis for protecting the entire Sherlock Holmes character just because a few of Doyle’s later stories were still under copyright.

My previous post on the district court’s decision: Sherlock Holmes and the case of the split copyright personality

Not surprising, given that Judge Posner is the author the classic “Law and Literature,” now in its third edition, the decision includes interesting comparisons to other literary works. Like the district court, the appeals court rejected the Doyle estate’s claim that “complex” characters deserved broader copyright protection, and the estate’s switch in terminology – to “rounded” and “flat” characters, instead of “complex” and “flat” – did not change the court’s mind. Indeed, the “round” character image may have focused Judge Posner on the famous fictional character of Falstaff, whom Shakespeare dealt with out of chronological order in multiple plays. Judge Posner noted that as to both Holmes and Falstaff, arguably more round characters are found in later works depicting a younger person. But “we don’t see how that can justify extending the expired copyright on the flatter character.”

Apart from the interesting subject matter and analogies, Judge Posner’s decision contributes to the ongoing policy discussion about the benefits and detriments of copyright protection. The decision includes a strong warning that extending copyright protection as requested by the Doyle estate would be a “two-edged sword,” because it would reduce the incentive of subsequent authors to create derivative works, increase the costs of new authorship, and incentivize successful authors to extend old characters rather than create stories with entirely new characters.


Written by:

Published In:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Thompson Coburn LLP | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »

All the intelligence you need, in one easy email:

Great! Your first step to building an email digest of JD Supra authors and topics. Log in with LinkedIn so we can start sending your digest...

Sign up for your custom alerts now, using LinkedIn ›

* With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name.