Civil Liberties

Sherlock Holmes and the Case of the Public Domain

Some mostly-good news on the copyright front.


Sherlock Hound is still under copyright.
TV Asahi

Here's some mostly good news in the world of intellectual property law:

A federal judge has issued a declarative judgment stating that Holmes, Watson, 221B Baker Street, the dastardly Professor Moriarty and other elements included in the 50 Holmes works that Arthur Conan Doyle published before Jan. 1, 1923, are no longer covered by United States copyright law, and can therefore be freely used by others without paying any licensing fee to the writer's estate.

What about John Cleese? Can we copyright John Cleese?

The ruling came in response to a civil complaint filed in February by Leslie S. Klinger, the editor of the three-volume, nearly 3,000-page "New Annotated Sherlock Holmes" and a number of other Holmes-related books. The complaint stemmed from "In the Company of Sherlock Holmes," a collection of new Holmes stories written by different authors and edited by Mr. Klinger and Laurie R. King, herself the author of a mystery series featuring Mary Russell, Holmes's wife.

Mr. Klinger and Ms. King had paid a $5,000 licensing fee for a previous Holmes-inspired collection. But in the complaint, Mr. Klinger said that the publisher of "In the Company of Sherlock Holmes," Pegasus Books, had declined to go forward after receiving a letter from the Conan Doyle Estate Ltd., a business entity organized in Britain, suggesting that the estate would prevent the new book from being sold by Amazon, Barnes & Noble and "similar retailers" unless it received another fee.

I call this mostly good news because the judge sided with the Doyle estate when it came to elements of the Holmes mythos introduced after 1923. Those are still under copyright protection in the U.S., so if you want to publish a story that mentions, say, Dr. Watson's career as a rugby player, you still need to pay a fee to Doyle's heirs. (*)

The court's decision, which you can read here, discusses such topics as a precedent set by Amos 'n' Andy and whether Watson's second marriage is a copyrightable "characteristic" or a non-copyrightable "event." If you enjoy the territory where legal and literary exegesis collide, you should read it.

When I last wrote about this case, I posed some questions to Reason readers. Now that the judge has released his ruling, I'll offer them again:


Posts like this tend to set off debates in the comments about whether copyright laws should exist at all, but let's assume, for the sake of argument, that they should. Can anyone give me a good reason for applying copyright to a character, as opposed to a story about that character? It shouldn't be difficult for the fans of, say, Star Wars to tell which stories about Han Solo have George Lucas' input or blessing and which ones do not. Why shouldn't you have the legal right to circulate your own Han Solo films or novels on more than a semi-clandestine amateur basis without asking permission first, competing head to head with Disney to see who can tell the better stories about the characters and settings that Lucas invented? I can see why Disney's shareholders wouldn't like that, but why should their preferences be law?

And suppose we agree that characters should be copyrightable. Why on Earth should intellectual property law protect particular characteristics of a public-domain character? Does it really make sense to have a legal regime in which anyone can write a story about Sherlock Holmes but you need to pay tribute to Arthur Conan Doyle's heirs if you allude to the wrong elements of the canon?

Bonus link: "Ripping, Mixing, and Burning Arthur Conan Doyle."

* Correction: The phrase "sided with the Doyle estate" implies that Klinger was contesting this point. The judge thought that he was, but that was a misunderstanding: Klinger was not asserting a right to use elements introduced in Doyle's final stories, but was merely arguing that those elements did not remove the characters themselves from the public domain. He spells this out on page 15 of this brief.