It is legal to publish stories about Sherlock Holmes and Dr. Watson without the permission of their creator's estate, because those characters are in the public domain. That's what the Seventh Circuit ruled in June, and it's now clear that the judge's decision is going to stand: The U.S. Supreme Court has declined to hear an appeal filed by Sir Arthur Conan Doyle's heirs.
As I wrote when the Seventh Circuit ruling came down, this is
a welcome decision. The argument offered by Arthur Conan Doyle's estate rested on the fact that 10 Sherlock stories were published after 1923 and therefore have not yet entered the public domain. Because those stories introduced new elements to Holmes' and Watson's fictional lives, the estate's attorneys claimed that the characters were not fully created until after 1923 and therefore aren't in the public domain after all. At a time when copyright terms are constantly being extended into the future, the estate was effectively attempting to enact a stealth extension into the past.
It was an absurd argument, and Judge Richard Posner swatted it down gracefully.
Absurd though its argument was, the Doyle estate had been getting away for years with asking writers for fees they were not actually legally obliged to pay. Indeed, this case began with the Doyle estate telling Leslie Klinger that he and his publisher had to cough up $5,000 for the right to use Holmes and Watson in a book. Now the money will be flowing in the opposite direction: In August, Judge Posner ordered the estate to give Klinger $30,679.93—the amount he incurred in the circuit-court stage of the legal fight. Klinger is also asking to be compensated for the costs of an earlier stage of the battle, before a lower court; if that request is granted, Doyle's heirs will be on the hook for another $39,123.44.
I hope that happens. As Posner wrote in his August order,
The Doyle estate's business strategy is plain: charge a modest license fee for which there is no legal basis, in the hope that the "rational" writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand. The strategy had worked with Random House; Pegasus was ready to knuckle under; only Klinger (so far as we know) resisted. In effect he was a private attorney general, combating a disreputable business practice—a form of extortion—and he is seeking by the present motion not to obtain a reward but merely to avoid a loss. He has performed a public service—and with substantial risk to himself, for had he lost he would have been out of pocket for the $69,803.37 in fees and costs in-curred at the trial and appellate levels ($30,679.93 + $39,123.44). The willingness of someone in Klinger's position to sue rather than pay Doyle's estate a modest license fee is important because it injects risk into the estate's business model. As a result of losing the suit, the estate has lost its claim to own copyrights in characters in the Sherlock Holmes stories published by Arthur Conan Doyle before 1923. For exposing the estate's unlawful business strategy, Klinger deserves a reward but asks only to break even.
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