Modern stories that use the Sherlock Holmes and Dr. John Watson characters do not require a copyright license, says an appellate court, in a ruling that embarks upon a literary analysis while also evoking “Star Wars” and the “Amos 'n' Andy” radio show.
Arthur Conan Doyle published his first Sherlock Holmes story in 1887 and his last in 1927, according to Monday's ruling by the 7th U.S. Circuit Court of Appeals in Chicago in Leslie S. Klinger v, Conan Doyle Estate Ltd.
There were 56 stories in all, plus four novels. The final 10 stories were published between 1913 and 1927, and under copyright law, their copyrights will not expire until 95 years after the date of original publication, or between 2018 and 2022, according to the ruling. Meanwhile the copyrights on all the earlier stories have already expired.
Once a copyright expires, a work becomes part of the public domain and can be copied and sold without the need for a license from the expired copyright's holder, says the lawsuit.
In 2011, Leslie Klinger co-edited an anthology called “A Study in Sherlock: Stories Inspired by the Sherlock Holmes Canon.” Although it consisted of later workers by other writers, featuring characters who had appeared in the canonical works, the Doyle estate told New York-based Random House L.L.C., which had agreed to purchase the book, it would have to pay the estate $5,000 for a copyright license.
“Random House bowed to the demand, obtained the license and published the book,” said the ruling.
Mr. Klinger and his co-editor then decided to create a sequel to “A Study in Sherlock,” to be called “In the Company of Sherlock Holmes.” The Doyle estate learned of the planned book and told its planned publisher, San Jose, California-based Pegasus Books, it would have to obtain a license to be legally authorized to publish the new book.
It told Pegasus that if it did not do so, “do not expect to see it offered for sale by Amazon, Barnes and Noble and similar retailers,” with which it routinely works. “There was also a latent threat to sue Pegasus if it published the book without a license, and to sue Internet service providers who distributed it,” said the ruling. “Pegasus yielded to the threat” and as Random House had done, refused to publish the book until a license form the Doyle estate was obtained.
Mr. Klinger filed suit instead, seeking a declaratory judgment he is free to use material within the 50 Sherlock Holmes stories and novels that are no longer under copyright, provided he uses nothing in the 10 stories still under copyright.
A judge in U.S. District Court in Chicago granted Mr. Klinger's request, and the estate appealed, claiming in part that that “copyright on a 'complex character' story, such as Sherlock Holmes or Dr. Watson, whose full complexity is not revealed until a later story, remains under copyright until the later story falls into the public domain,” said the ruling.
A study in copyright
A unanimous three-judge panel of the 7th Circuit disagreed. “We cannot find any basis in statute or case law for extending a copyright beyond its expiration,” said the panel, citing a 1989 case related to the “Amos ‘n’ Andy” radio show which, it said, became “fair game for follow-on authors” after he expiration of is copyright.
The estate argued that the Holmes and Watson characters were more rounded in the later works. While this is correct, “We don’t see how that can justify extending the expired copyright on the flatter charter,” said the ruling.
It said a contemporary example is the six “Star Wars” movies: Episodes IV, V, and VI were produced before I, II, and III. “The Doyle estate would presumably argue that the copyrights on the characters as portrayed in IV, V and VI will not expire until the copyrights on I, II, and III expire,” said the ruling.
“The spectre of perpetual, or at least nearly perpetual copyright …. looms once one realizes that the Doyle estate is seeking 135 years (1887-2011) of copyright protection,” for the Sherlock Holmes character, said the ruling, in upholding the lower court’s ruling.