The Curious Case of Sherlock Holmes’ Copyright

by Davis Wright Tremaine LLP

When last we saw Benedict Cumberbatch as Sherlock Holmes, in the second season of the BBC series “Sherlock” in 2012, Holmes had apparently died in a fall from a hospital roof in an episode entitled “The Reichenbach Fall.” The episode’s title was a nod to an 1893 story by Arthur Conan Doyle in which the author attempted to kill off his Holmes character at the Reichenbach Falls in Switzerland—Conan Doyle thought that the enormous success of Holmes was stifling his more serious literary output. In response to the clamor for more stories from his fans that followed, though, Conan Doyle brought back Holmes eight years later. In the fast-moving way of our modern world, Cumberbatch’s Holmes appears to be returning from the dead as well, after a much shorter absence.

On Friday, Dec. 27, however, a federal district court judge in Illinois put to rest a claim by the Estate of Arthur Conan Doyle that it still holds a copyright interest in the entirety of the Sherlock Holmes character, and it is unlikely that this particular argument will be resurrected.

Jan. 1, 1923 is a critical date for copyright in the United States. Works published before that date are, without caveat, a part of the public domain in this country because their copyright term has expired. Works published in 1923 or afterwards may or may not be subject to copyright protection, depending on whether certain technical requirements were properly followed (for a comprehensive chart of copyright terms, see here). But the 1923 date provides a bright-line rule that is helpful for those who wish to make use of older works for new purposes.

What types of new purposes? Well, virtually anything the human mind can envision. Works in the public domain can be re-envisioned, rebooted, torn apart, or mashed-up. You can use the whole work, or just pieces. This is the grand compromise of copyright law: Authors are rewarded with a temporally limited monopoly for the exclusive control and monetization of their work, in exchange for bringing original works (and their constituent elements) to the public. Those public works then may be shared and used as building blocks for other original works, at least for as long as copyright law survives in its present form.

Much debate has raged over prior extensions of the copyright term, which have delayed the contribution of many works to the public domain (and which, some argue, undermine the concept of a “limited” monopoly). In 1790, under the first U.S. Copyright Act, the term of copyright was 14 years, with an opportunity to renew for another 14 years. By 1831, the term had increased to 28 years with a 14-year renewal. In 1909, the term became 28 years, with a 28-year renewal. A rejected, alternative formulation would have made the term “life of the author” plus fifty years (see here for the humorous statements by Mark Twain in support of the longer term), a concept that was finally adopted some seven decades later, in 1976. Under the Sonny Bono Copyright Term Extension Act of 1998, the copyright term for new (and many properly renewed) works now stands at life of the author plus 70 years. This means that if a 20-year-old author creates a new work today, and lives to be 86 years old, the copyright in that work will not expire until 2150.

One of the great explosions in popular culture that developed primarily after the 1920s was the rise of the “series” in fiction—novels and films based on characters that carried over from book to book or movie to movie. While by no means an invention of the twentieth century, series fiction has grown in popularity and the characters at the heart of those series (across multiple forms of media) are extremely valuable. In large measure, the most popular characters today are those that were created after the 1920s and are still protected by copyright, but there are a number of series characters first created prior to 1923 that still resonate with a wide audience, including the characters from the Oz books; from the Peter Pan books and play; from Mark Twain’s Tom Sawyer and Huck Finn novels; and from the two Alice in Wonderland books, just to name a few.

And Sherlock Holmes. Arthur Conan Doyle’s archetypical detective may well be the most popular and influential fictional character in the history of modern literature; as one small measure of proof, the Guinness World Records lists Holmes as the "most portrayed literary human character in film & TV." The first Conan Doyle story featuring Holmes was published over 125 years ago, in 1887. The last was published in 1927, and therein lies the rub.

Because most of the stories and all four Holmes novels were published before 1923, but some of the stories—10, to be exact—were published after that key date, and apparently remain under copyright, held by Conan Doyle Estate, Ltd. (“CDEL”), a company owned by members of the Conan Doyle family. So, under the copyright laws of the United States it is clear that while anyone is free to copy or distribute or display or perform any of the pre-1923 works featuring Holmes, you need permission from CDEL to do so with respect to any of the post-1923 works.

But what about the character Sherlock Holmes himself? And John Watson? How should the law handle characters that straddle the line, with some aspects created in works that are now in the public domain, and some aspects added in works that are still subject to copyright protection? This was the question posed to Chief Judge Rubén Castillo of the U.S. District Court of the Northern District of Illinois, Eastern Division, in an action brought by Leslie Klinger, an author and editor seeking to publish a collection of new stories by contemporary authors featuring Sherlock Holmes. In the action, Klinger sought a declaration from the court regarding the status of elements from the Conan Doyle works, given threats by CDEL that a license would be required for ay use of the Holmes or Watson characters.

On summary judgment, both parties advanced novel and interesting arguments, but in the end the judge ruled in a manner that most copyright law experts expected.

CDEL argued that for a complex character that has been continually developed over the course of many works, the entire character should remain under copyright protection until the last work enters the public domain (CDEL also claims trademark protection in the name SHERLOCK HOLMES, but that claim was not at issue in the case). In essence, it said, a literary character is akin to a real human being, and “a complex literary personality can no more be unraveled without disintegration than a human personality.” CDEL pointed to case law establishing that fictional characters can be protected separately from the works in which they appear, attempting to use that logic to persuade the court that a character is a “single integrated work of authorship”, only complete when the last work featuring the character is published.

The plaintiff argued that prior case law makes clear that elements of a character appearing in public domain works are in the public domain, and that the public is free to use all of the elements of the Holmes and Watson characters developed prior to 1923. For the post-1923 works, the plaintiff advanced an argument that developments in those works were not characteristics of the two characters, but rather “events” that were not essential to the Holmes and Watson characters.

Judge Castillo rejected both arguments, finding that there was no legal precedent for treating a literary character as a unitary work spanning many underlying works and not completed until the final underlying work. The judge pointed to clear case precedent establishing that courts do in fact require the precise “unraveling” of characters into public domain and copyrighted versions that CDEL believed inappropriate, and held that “Klinger and the public may use the pre-1923 Story Elements without seeking a license.” The judge then turned to the post-1923 story elements and found that they were clearly “increments of expression” added in derivative works still subject to copyright protection, under 7th Circuit law, and could not be used without a license. These elements include “ (1) Dr. Watson's second wife, first described in the 1924 short story ‘The Illustrious Client’; (2) Dr. Watson's background as an athlete, first described in the 1924 short story ‘The Sussex Vampire’; and (3) Sherlock Holmes' retirement from his detective agency, first described in the 1926 short story ‘The Lion's Mane.’”

For those who worry about the extended term of copyright (and for that matter, those who don’t), this case is a reminder that the public domain still has relevance and that when copyright protection ends, it ends.

Case closed.


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.

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