Federal Judge Declares Sherlock Holmes Characters in Public Domain. Sort of.

by Greenberg Glusker Fields Claman & Machtinger LLP

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.

Sort of.

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.


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.

© Greenberg Glusker Fields Claman & Machtinger LLP | Attorney Advertising

Written by:

Greenberg Glusker Fields Claman & Machtinger LLP

Greenberg Glusker Fields Claman & Machtinger LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*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. Or, sign up using your email address.