The question of whether elements of the first fifty Sherlock Holmes stories have lapsed into the public domain came before an apparently unsympathetic 7th Circuit Court of Appeals for oral arguments.
Sherlock fans should be aware of a real-life drama being waged in our courts over the copyright of their beloved character. On May 22, 2014, the 7th Circuit heard oral arguments on the ongoing case of Klinger v. The Estate of Arthur Conan Doyle. Author Leslie Klinger had asked the courts for a determination that various characters, character traits and other story elements from Sir Arthur Conan Doyle’s Sherlock Holmes stories are free for the public to copy without infringing Conan Doyle’s copyright.
Klinger is the co-editor of A Study in Sherlock, an anthology of short stories inspired by Sherlock Holmes. Before the anthology could be published, the Conan Doyle Estate challenged the work, claiming that it held a copyright on the characters of Sherlock Holmes and Dr. Watson. It demanded that the book’s publisher, Random House, enter into (and pay a fee for) a licensing agreement with the Estate for use of the characters.
A second book, In the Company of Sherlock Holmes, was to follow with a different publishing house. Again, the Estate demanded a licensing agreement for use of the characters of Sherlock Holmes, Dr. Watson, and Langdale Pike. This time, Klinger refused to pay the licensing fee and instead asked the courts to intervene.
In December, a lower court determined that all but ten of Sir Arthur Conan Doyle’s short stories which were published after January 1, 1923 are now a part of the public domain, which could permit writers to use most of the Sherlock Holmes characters and story elements without licensing them from the Conan Doyle Estate.
Unsatisfied with that result, the Estate appealed that decision, but if the recent oral arguments are any indication, the 7th Circuit Court of Appeals seems less than sympathetic to the Estate’s position. The Estate insists that, because the characters continued to develop and evolve over the years of Sir Arthur Conan Doyle’s storytelling, they were “effectively incomplete” until the final Sherlock Holmes story was published, thereby extending their copyright. While the Court’s commentary and questioning during oral arguments may not always be the best indicator of which way their decision may go, the Estate has to be worried by Judge Richard Posner’s harsh questioning and his characterization of the Estate’s position as “an aggressive attempt to enlarge copyright law.”
The Court of Appeals’ decision on the matter is forthcoming.
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