Sherlock Holmes Joins the Public Domain
A recent federal court decision may help resolve a long-running copyright question: is Sherlock Holmes protected under US copyright, or is he in the public domain?
Let’s start with a quick refresher on the public domain. Broadly speaking, anything that is not subject to copyright protection is said to be in the public domain. This means that anyone can make copies of that work and – crucially – create new works based on the original (these are called “derivative works.”)
The general rule of thumb is that, in the US, anything created before 1923 is in the public domain, and anything created on or after January 1, 1923 may still be under copyright protection, assuming those rights were properly registered and maintained. Those registration and maintenance requirements are somewhat simplified for works created or first published on or after January 1, 1978, but all of the Holmes works at issue are much older than that.
Here’s where Holmes comes in: he first appeared in a story published by his creator, Arthur Conan Doyle, in 1887 in the UK and in 1890 in the US. He continued to publish Holmes stories and novels through 1927. 10 of those stories were published after the 1923 public domain cutoff. Each story and novel added to the Holmes mythology and added elements to the character’s life story.
Side note: just to make things more complicated, because UK copyright laws are not identical to those in the US, all of Conan Doyle’s Holmes works are in the public domain in the UK. This blog post concerns only the US rights.
Leslie S. Klinger was the co-editor of In the Company of Sherlock Holmes, a collection of new Holmes stories written by different authors. According to Klinger, the stories avoided using any elements from the post-1923 Conan Doyle stories – meaning, they only used those elements that they understood to be in the public domain. The Conan Doyle Estate Ltd. sent a letter to Kilinger’s publisher, Pegasus Books, suggesting that the Estate would prevent the book from being sold unless a licensing fee was paid. Klinger filed suit in the United States District Court of the Northern District of Illinois, Eastern Division, seeking a declaratory judgment to the effect that he was free to publish the new stories in the US without violating the Estate’s copyright interest in the post-1923 stories.
The court ruled in favor of Klinger (the ruling can be read here). Citing a well-known treatise, Nimmer on Copyright, the ruling states that “[w]hen an author has used the same character in a series of works, some of which are in the public domain, the public is free to copy story elements from the public domain works.” The ruling calls the Conan Doyle Estate’s contending legal theory “novel,” which is never how you want a judge to describe your argument. Most judges worship precedence and abhor novelty.
The Estate had tried to argue that, essentially, you cannot extract the post-1923 story elements from the complex character of Sherlock Holmes; the court dismissed that argument. The Estate further claimed that a ruling against them would create two separate versions of Conan Doyle’s characters – one in the public domain and the other subject to copyright protection. The court didn’t disagree with the latter point, and in fact pointed out that previous court rulings pertaining to Holmes copyright issues had done exactly that.
Klinger had further tried to argue that the post-1923 story elements were not subject to copyright protection. This is distinct from the stories themselves. This argument sought to allow Klinger to use elements first mentioned in the post-1923 stories, such as Holmes’ companion Dr. Watson’s second wife. The court declined to grant summary judgment to Klinger on this line of argument.
Finally, Klinger asked the court to enjoin (prevent) the Estate from asserting future copyright claims over all of the elements of the Holmes canon. The court declined to go that far. Nonetheless, Klinger prevailed on his core claim, and – at least for now, under this court’s jurisdiction, and pending appeal – Sherlock Holmes and his pre-1923 story elements are now in the public domain and free to copy and use as anyone sees fit.
As a postscript, I should add that there are potentially conflicting claims under trademark law, but that’s a story for another day.
