“Not much. But there is this decision from the U.S. District Court for the Northern District of Illinois…”
It would be tempting, to be sure, to try to embellish a discussion of the recent Sherlock Holmes decision with Holmesian flourishes, but this blawger isn’t going to do that—even though the decision has recognized his—and yours, for that matter—freedom to use the “characters, character traits, and other story elements from Sir Arthur Conan Doyle’s Sherlock Holmes stories”—or at least those published before 1923. That said, a simple recitation of the relevant facts is in order—a method Holmes himself might have employed—in a bulleted list (and Holmes would have been able to tell you whether I am left- or right-handed just by examining these bullets!):
- Sir Arthur Conan Doyle wrote four novels and fifty-six short stories featuring the fictional characters Sherlock Holmes and his friend and chronicler Dr. John H. Watson.
- The first story, “A Study in Scarlet,” was first published in 1887 (in the United States in 1890). Forty-five further stories and the four novels were published in the U.S. before January 1, 1923. All of these works are in the public domain.
- The remaining ten stories, published after 1922, are still protected by copyright, owned by a company whose principals are relatives of Conan Doyle.
- The plaintiff of Leslie S. Klinger v. Conan Doyle Estate, Ltd. is, among other things, an anthologist of new Sherlock Holmes stories. He co-edited an anthology of such works published by Random House, which had entered into a licensing agreement with Conan Doyle Estate, Ltd. to use the characters of Holmes and Watson, notwithstanding Klinger’s belief that no license was required by law. More recently, however, when Klinger sought to have a second anthology published by a different house—and Conan Doyle Estate, Ltd. again demanded that a licensing agreement be entered into (and threatened to pressure retailers not to sell the new book absent such a license)—the second publisher balked, prompting Klinger to sue Conan Doyle Estate, Ltd.
- Klinger sued in the United States District Court for the Northern District of Illinois for a determination of the “copyright status of a list of specific characters, character traits, dialogue, settings, artifacts, and other story elements in the [Sherlock Holmes canon; the ‘Canon’].” After some procedural missteps—including a failure of Conan Doyle Estate, Ltd. to appear!—Klinger was permitted to move for summary judgment (which the Estate was permitted to oppose, despite its default).
Klinger sought a determination that the “Sherlock Holmes Story Elements”—defined as those things listed above as appearing in the pre-1923 Holmes canon—“are free for public use because the stories in which they were first introduced have entered the public domain.” This makes sense. (Klinger, the court noted, “abandoned the argument that the [post-1922 stories] are in the public domain.”] The Estate, on the other hand, “argue[d] that because Sherlock Holmes and Dr. Watson were continually developed throughout the entire Canon” (which includes the post-1922 stories), “the copyright protecting the [post-1922 stories] should extend to the Sherlock Holmes and Dr. Watson characters and the story elements pertaining to those characters.” This also makes some sense. Good thing there was a judge—Chief Judge Rubén Castillo—to decide which makes more sense.
Klinger’s argument was the one that we’d have expected: When the story that introduced a Holmesian element entered the public domain, the element went with it. The Estate countered with the “novel legal argument that the characters of [Holmes] and [Watson] continued to be developed throughout the copyrighted [post-1922 stories] and therefore remain under copyright protection until the final copyrighted story enters the public domain in 2022.” That is, broadly speaking, as long as some part of a fictional character is still under copyright, the whole character is. An interesting, dangerous proposition indeed—and one wonders why there was no discussion of the fact that, by the Estate’s logic, Holmes and Watson would enter the public domain in 2022 at the earliest. 2022 is when the last of Conan Doyle’s Holmes stories will be free for all to copy. But what of licensed stories that further develop the characters? Why wouldn’t Holmes and Watson remain protected by copyright until the stories in Klinger’s own first anthology of new Holmes stories enters the public domain, since the characters of the detective and his friend were certainly only further developed in those new stories? Alas, there is no answer to this question. Fortunately, the question is moot because Judge Castillo was not persuaded by the Estate’s argument.
The court concluded that the pre-1923 Sherlock Holmes story elements—which evidently includes the characters of Holmes and Watson—“are free for public use.” The Estate argued that such a holding “[would] dismantle Sir Arthur Conan Doyle’s characters into a public domain version and a copyrighted version,” and the court note that that is “precisely what prior courts have done,” which makes it okay.
The second large part of the decision deals with whether any story elements introduced in any Conan Doyle-authored post-1922 stories are fee for public use, notwithstanding that the ten stories themselves are still protected by copyright. Here some examples of “elements” might be helpful: Dr. Watson’s second wife was first described in a 1924 story; the doctor’s background as an athlete was first mentioned in another 1924 story; and Holmes’s retirement was first recounted in a story published in 1926. Klinger argued that these character elements and others do not “complete” the characters of Holmes and Watson and therefore do not qualify for copyright protection. But courts, the court said, do not distinguish between elements that “complete” a character and elements that don’t; rather, the law instructs that the “increments of expression” contained in copyrighted works warrant copyright protection.
Judge Castillo noted that, to date, the cases in the Seventh Circuit had applied the incremental expression test only to derivative works—and the Estate argued that because Conan Doyle had developed his characters throughout the entire canon, no single work was derivative of a previous one—but the court applied the principles of derivative works to literary sequels nevertheless. “The subsequent works in the Canon, including the [post-1922 stories], thereby meet the definition of derivative works,” the court held. Accordingly, the court would apply the increments of expression test… and would find that Klinger had not provided any evidence that the post-1922 story elements are not protectable, and therefore protected, by copyright. Thus Klinger won big and lost small.
Of course, the real winners here are all of us who have Sherlock Holmes stories of our own sitting unread in drawers. For now we can publish them without fear of interference from the Estate of Sir Arthur Conan Doyle—although the man’s ghost itself might haunt us as punishment. (And he’d get away with it, too, if not for those meddling kids…!)
UPDATE: The Seventh agrees!