Sherlock lives in public domain, US court rules in case of the heckled brand

Judgement closes copyright loophole in US limiting right to bring detective back to life

By Jessica Glenza September 26, 2015

A US court has ruled that Sherlock Holmes – along with 46 stories and four novels he’s appeared in – is in the public domain, reaffirming the expiration of the copyright once owned by the estate of Scottish writer Arthur Conan Doyle.

The ruling by the seventh US circuit court of appeals in Chicago comes after the Doyle estate threatened to sue the editor of a book of original Holmes fiction if the author didn’t pay licensing fees.

Doyle’s estate contacted Leslie Klinger in 2011, when he was about to publish an anthology of original fiction starring Holmes, A Study in Sherlock: Stories Inspired by the Sherlock Holmes Canon. The estate demanded publisher Random House pay $5,000 in licensing fees for the use of the Holmes character.

Random House paid the fees, even though Klinger thought that the Holmes stories were in the public domain.

As Klinger was working on a sequel, In the Company of Sherlock Holmes, to be published by Pegasus Books and distributed by WW Norton & Company, the estate again threatened to sue Klinger and the publisher if a licensing fee wasn’t paid.

“If you proceed instead to bring out Study in Sherlock II [the original title of In the Company of Sherlock Holmes] unlicensed, do not expect to see it offered for sale by Amazon, Barnes & Noble and similar retailers. We work with those compan[ies] routinely to weed out unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate to do so with your book as well,” wrote Doyle’s estate.

This time, Klinger sued.

He said he wasn’t infringing on the 10 Holmes stories that remained under 95-year copyright protection, where details about Holmes’ feelings about dogs and Dr Watson’s second marriage were revealed.

US copyright lasts for anywhere from 95 years, or the life of the creator plus 70 years, depending on a number of factors, such as when it was published and whether it was a hired work.

Initially, Doyle’s estate didn’t show up to court for the complaint. When Klinger filed a motion for summary judgment, the estate argued against Klinger’s right to use the character and for even greater copyright protection.

Klinger prevailed, and Doyle’s estate appealed.

That appeal prompted the seventh circuit court judges' scathing affirmation of the expiration of copyright.

The estate argued that copyright should continue to apply because Holmes was made a more “round” character in the last 10 stories.

“Flat characters thus don’t evolve. Round characters do; Holmes and Watson, the estate argues, were not fully rounded off until the last story written by Doyle. What this has to do with copyright law eludes us,” wrote Judge Richard A Posner in the court’s opinion.

The decision is one of the few where a reader might find a federal court discussing Star Wars. Judges said that the estate’s argument was tantamount to an argument that copyrights on Star Wars, Episodes IV, V and VI were extended because of the release of Episodes I, II and III.

“We don’t see how that can justify extending the expired copyright on the flatter character,” Posner wrote.

“Anyway it appears that the Doyle estate is concerned not with specific alterations in the depiction of Holmes or Watson in Holmes-Watson stories written by authors other than Arthur Conan Doyle, but with any such story that is published without payment to the estate of a licensing fee,” the judges wrote.

On Monday, Klinger told Reuters he was "very, very pleased" and hoped to publish the new book in November. "The urge to publish more comes from the love for the first 60 stories, and people should be encouraged to create more."

Benjamin Allison, a lawyer for the Conan Doyle estate, told Reuters no decision has been made on an appeal.