The adventure of the copyrighted detective
Jun 19th 2014, 22:28 by G.F. | SEATTLE
THE curious case of one Mr Sherlock Holmes has completed its journey through the American courts. Who, if anyone, owns the rights to this precise ratiocinator? An appeals court said on June 16th that in the United States the answer is no one. Mr Holmes as a character, plus the majority of his characteristics and those of his chums, are decidedly in the public domain.
Arthur Conan Doyle’s detective first appeared in a story in 1887. The Conan Doyle Estate, an organisation that looks after the interests of Conan Doyle’s heirs, has said that because ten stories were printed in America for the first time between 1923 and 1927—and so remain under copyright there—all of Mr Holmes’s and Dr John Watson’s salient characteristics are therefore protected. (In Britain and many other countries, all of Conan Doyle’s works entered the public domain in 1980, 50 years after his death. In America the copyright regime has changed for works published in 1978 or later, but most works published between 1923 and 1977 remain in copyright for 95 years.)
Prospero wrote in February 2013 about a lawsuit filed by Leslie Klinger, a lawyer and Holmes expert, who wished to publish a second collection of Holmes-inspired work, edited with Laurie King, an author of detective fiction. For the first collection, he acceded to the wishes of his publisher, which paid the estate a fee. For the second, he refused. He freely acknowledges the in-copyright status of the ten last works, but says he has scrubbed his book of any fact or traits that appear exclusively in those stories. The estate threatened to sue and to warn book distributors against stocking the title.
Mr Klinger’s lawsuit travelled quickly through the courts, and the estate failed to appear during hearings last year. In December 2013 a judge issued a summary judgment in favour of Mr Klinger’s position that any story elements involving Conan Doyle’s detectives that appeared before 1923 were in the public domain. The estate appealed, but a three-judge panel backed the judge when it returned its decision on June 16th.
The estate has relied throughout on an interpretation of copyright law that experts consulted by Prospero and jurists have rejected: that is, that the sum of a character is formed across the entirety of the works in which he or she appears, and is thus protected if any work remains under copyright. The appeals court reaffirmed established law and practice that only sufficiently original elements that appear in individually published works receive such protection.
Richard Posner, one of the three judges at the appeals court and an elegant writer of decisions, noted that the question is “whether copyright protection of a fictional character can be extended beyond the expiration of the copyright on it because the author altered the character in a subsequent work.” Mr Posner writes that it is definitely not the case. Were it to be so, authors would have a direct incentive to continue writing stories with old characters to keep copyright protection in effect for longer periods of time. (The entire decision is worth a read; it’s quite amusing.)
The estate has not let previous setbacks stop it from claiming rights that it asserts it possesses. Mr Klinger may proceed with his publication, but in the tetchy world of publishers, television studios and film studios, in which expensive operations can be halted through a whisper of ownership worries, Conan Doyle’s heirs may continue to collect royalties. And the Supreme Court may be called upon once again to investigate, prognosticate and make logical deductions. Unlike those solved by the great detective, this case is not closed.