It has been over a hundred years since Sherlock Holmes first appeared in print. Now, thanks to Judge Posner of the Seventh Circuit Court of Appeals, anyone who wants to write a story using the infamous sleuth or any other character’s from Sir Arthur Conan Doyle’s canon are free to do so.
The Sherlock Holmes Character
Sir Arthur Conan Doyle wrote four novels and fifty-two short stories involving Holmes, between 1887 and 1927. The novels featured the incredible detective; with his sidekick Dr. Watson, solving seemingly impossible mysteries using his unique intellectual detection method known as abductive reasoning in which he draws inferences based on careful observation. For example, If leather on the side of a shoe is scored by several parallel cuts, it was caused by someone who scraped around the edges of the sole in order to remove crusted mud. Holmes aggrandized about his deductive abilities and proffered the famous quote: “When you have eliminated the impossible, whatever remains, however improbable, must be the truth.”
He was well-versed in chemistry, anatomy, British law, martial arts and seemed to know every horrible act ever perpetrated in the city of London. Holmes was a bohemian, and while he was very meticulous in his investigations, his own personal cleanliness was a challenge. He was an avid lover of music, played the violin, a habitual cocaine user, which he claimed heightened his senses and on occasion could be found using morphine in London’s opium dens.
Arthur Conan Doyle’s creation has spawned an entire genre of TV, film and novels, from Magnum P.I. to Luther and even Scooby Doo. The Guinness World Records has consistently listed Sherlock Holmes as the “most portrayed movie character” with more than 70 actors playing the part in over 200 Sherlock Holmes films.
Copyright and the Sir Arthur Conan Doyle Literary Estate
The majority of Conan Doyle’s stories have already fallen out of copyright protection. Only ten stories remain copyright protected, which are owned and administered by the Sir Arthur Conan Doyle Literary Estate. As the copyright holders, the estate had the exclusive right to copy, distribute, and publicly display Doyle’s works. If someone wants to write a story about Sherlock Holmes, he or she had been required to get permission from the estate and pay them a licensing fee.
So here is the question the court was tasked to resolve:
If most of the Sherlock Holmes stories are in the public domain, why aren’t the characters?
Enter Leslie Klinger, a Sherlock Holmes scholar, who finally asked that question. Klinger was co-editing a second anthology of stories based on the Sherlock Holmes. Random House, Klinger’s publisher, had paid the Conan Doyle estate a licensing fee when it published the first edition, but refused to pay the estate’s high fee for Klinger’s second edition. To avoid paying the licensing fee, Klinger didn’t include the ten Holmes’ stories still under copyright protection in his anthology, but the Doyle estate still required the fee based on the characters. Klinger disagreed and decided to sue.
The estate argued that the Sherlock Holmes character was a conglomeration of all Doyle’s stories. They claimed that the Holmes and Watson characters changed dramatically over Doyle’s writings, and the early versions weren’t fully rounded. The ten remaining stories were important to the character’s development and as a consequence, Sherlock Holmes and Dr. Watson should be protected until the last of the stories entered the public domain.
A Rousing Endorsement Of The Public Domain
Judge Posner didn’t buy the argument asking “what this has to do with copyright law eludes us” since Klinger’s work does not apply to the 10 stories still currently protected. Posner added that the estate’s argument was being used as a way to increase the copyright protection for Conan Doyle’s stories to 135 years. Posner went on to say that “We cannot find any basis in statute or case law for extending a copyright beyond its expiration. When a story falls into the public domain, story elements — including characters covered by the expired copyright — become fair game for follow-on authors …” One caveat though, character aspect created in works still under copyright are off-limits until those works enter the public domain.
The estate’s lawyers also argued “creativity will be discouraged” if the court doesn’t permit such an extension of copyright. Posner flat out rejected that assertion “Extending copyright protection is a two-edged sword from the standpoint of inducing creativity, as it would reduce the incentive of subsequent authors to create derivative works (such as new versions of popular fictional characters like Holmes and Watson) by shrinking the public domain. For the longer the copyright term is, the less public-domain material there will be and so the greater will be the cost of authorship, because authors will have to obtain licenses from copyright holders for more material […] .”
Can I Write a Story about Other Characters Now
The next Sherlock Holmes film and the fourth season of BBC’s Sherlock are free to use the character without any licensing. This case is certainly a blow to the Doyle estate but also to many other companies that administer serialized characters, such as Marvel Comics and Walt Disney Company. Serialized characters are always changing, gaining new powers and new backstories. Those copyright holders had hoped for a ruling in favor of Conan Doyle Estate which would have given them longer protections for their characters. James Bond, Batman, Superman and many other characters have just had their corporate owned life shortened. Mickey Mouse, for example, was first seen in Steamboat Willie (1938). For corporations, the copyright duration is 95 years from first publication, so now under this ruling; Mickey Mouse in his Steamboat Willie persona will enter the public domain in 2032. Mickey’s more modern persona, from the film Fantasia (1940) will enter the public domain in 2035. So all those that want to write a story or make a film about the cartoon mouse, you may have your chance. However, as we discussed in our article, How Mickey Mouse Keeps Changing Copyright Law, don’t be surprised if copyright duration changes again prior to 2032, keeping Mickey Mouse out of the public domain.