Public Domain or Copyrighted, My Dear Watson?
By Peter Dang
When we think of the term “detective,” the image of Sherlock Holmes quickly comes to mind—the quirky hat; the deductive reasoning skills; and, of course, the memorable phrase “Elementary, my dear Watson.” The famous detective first appeared in 1887 in the novel A Study in Scarlet by Sir Arthur Conan Doyle. Other novels and short stories about Holmes quickly followed and continued to be written and published as late as 1927. Most of those written works have since entered into the public domain, but copyright law still protects ten stories in the United States.
What happens to a character’s copyright protection when the original stories they starred in have entered into the public domain, but those published later have not? This is currently the subject of a lawsuit between Sherlock Holmes scholar Leslie S. Klinger and the Doyle estate. Klinger is an attorney as well as an established editor of several Sherlock Holmes stories. In 2011, Klinger tried to publish a collection of original short Sherlock Holmes stories titled A Study in Sherlock, but was threatened with a lawsuit by the Doyle estate if he did not pay a licensing fee. Pressured by Random House, Klinger’s publishing company at the time, Klinger reluctantly paid a $5,000 fee to publish his works. This time around, Klinger’s new publisher, Pegasus Books, believes that there is no need to pay such a fee for publishing Klinger’s second collection, In the Company of Sherlock Holmes. Klinger decided to bring a lawsuit to seek declaratory judgment to settle the copyright issue once and for all, claiming that the estate is making a wrongful demand for licensing of public domain novels and stories.
The crux of Klinger’s argument is this: his publications draw from those of Doyle’s works that were published before 1923, and whose copyrights have therefore expired in the United States. The elements upon which his works are based first appeared in works that have already passed into the public domain. To this day, all but ten of Doyle’s Sherlock Holmes stories are in the public domain in the United States; the copyrights of these ten remaining works are set to expire at various times leading up to 2023, 95 years after the last was published.
On the other side of the case, the Doyle estate argues that it retain the rights to the Holmes character until all of the works have passed into the public domain. Peter Hirtle of Cornell University, however, told The Economist that there is “no basis for the Conan Doyle estate to claim general ownership over aspects of Holmes from stories that are in the public domain.” He explained that if an element of the Sherlock Holmes character first appears in one of the ten copyrighted stories, then it is still protected by U.S. copyright law. If, however, the element was introduced in one of the works in public domain, “then the estate has no ground to stand on.”
What could this lawsuit mean to Sherlock Holmes enthusiasts across the states? Well, if the judge rules in favor of the plaintiffs, we could see a surge of newly created works about our favorite detective and his trusty sidekick. Producers of shows such as BBC’s Sherlock and CBS’s Elementary, who had paid a licensing fee for their work, won’t need to worry about future licenses. Producers could freely hire Robert Downey Jr. to portray Sherlock on the big screen as long as they don’t draw on elements from the remaining protected works. And Klinger could author new stories without worrying about future lawsuits. With the Sherlock Holmes character in the public domain, writers and filmmakers will be able to create derivative works, without any restrictions from the Doyle estate.