Copyright Law

7th Circuit rejects ‘quixotic’ copyright appeal on Sherlock Holmes stories


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Sherlock Holmes lives again—in derivative works—in a decision (PDF) from the Chicago-based 7th U.S. Circuit Court of Appeals.

The character, companion John Watson and other elements of Sherlock Holmes stories were the subject of a copyright law appeal by the estate of Sir Arthur Conan Doyle, their creator.

The estate was forced to defend its copyright claims after being sued for a declaratory judgment. There is no dispute that of the 56 short stories and four novels featuring Holmes, only 10 stories remain under copyright in the United States.

But the estate argued that the Holmes and Watson characters are not “complete” without elements from the last 10, still copyrighted, stories. As a result, it argued, any other authors who wanted to use those characters still had to pay to license the characters.

Leslie Klinger, a Los Angeles tax attorney and the editor of several books on Sherlock Holmes, wanted to put out an anthology of stories inspired by the Holmes canon and written by well-known contemporary authors. The estate demanded a licensing fee for the use of the Holmes and Watson characters. The publisher couldn’t afford the fees and wouldn’t publish until the matter was settled.

So Klinger sued for, and won, a declaratory judgment. The estate took its appeal to the 7th Circuit, which upheld the decision. Judge Richard Posner, writing for a unanimous three-judge panel, first rejected a subject-matter jurisdiction argument suggesting that there was no actual case or controversy. Because the estate had expressly threatened to block distribution of the book by major retailers, and implicitly, the court said, threatened to sue, the court found jurisdiction.

It then rejected the estate’s contention that Holmes and Watson weren’t “complete” without the last 10 stories. Citing to Silverman v. CBS Inc., “a case much like this one,” the court found that the character copyrights were not extended.

The majority rejected an argument that “round” literary characters like Homes and Watson were different from the “flat” characters at issue in Silverman—Amos and Andy. Drawing comparisons to both Shakespeare and Star Wars, the opinion agreed that the Holmes and Watson characters might be “rounder” after the later works, but “we don’t see how that can justify extending the expired copyright on the flatter character.”

“With the net effect on creativity of extending the copyright protection of literary characters to the extraordinary lengths urged by the estate so uncertain, and no legal grounds suggested for extending copyright protection beyond the limits fixed by Congress, the estate’s appeal borders on the quixotic,” Posner wrote.

The estate’s attorney Benjamin Allison, told the ABA Journal that it’s considering appeal options. He said the court ruling put part of the Holmes character in the public domain, but noted that the estate still has rights to the character development in the last 10 stories.

“The court specifically did not rule on whether Mr. Klinger’s new book infringes the estate’s rights,” said Allison, an attorney at Sutin, Thayer & Browne in Santa Fe, New Mexico. “It remains to be seen whether in practice it is feasible to use the characters without using protected character development.”

See also:

ABA Journal: “Is Sherlock ‘complete’? 7th Circuit will consider when literary characters are free from copyright”

Hollywood, Esq. (Hollywood Reporter): “Conan Doyle Estate Loses Appeal Over ‘Sherlock Holmes’ Rights”

The Guardian: “Sherlock lives in public domain, US court rules in case of the heckled brand”

Gawker: “Sherlock Holmes Now Belongs to Everyone, Court Rules”

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