One might ask, how do 127-year-old immortal characters of Sherlock Holmes & Dr. Watson achieve emancipation? The answer is simple: Sherlock’s free for all now, as a direct result of Leslie Klinger v. Conan Doyle Estate Ltd[i]. The 7th Circuit Court of Appeals, US, vide Order dated June 16, 2014, clarified that the characters of the Sherlockean World, creations of Sir Arthur Conan Doyle, are in the public domain now, as their copyright expired as early as 1997. With the exception of 10 Sherlock stories written between 1923 and 1927, the copyright has expired on all other 46 stories and 4 novels concerning the very characters of Sherlock Holmes, Watson and the crew, constantly the target of condescension by the duo.
After the death of Sir Conan Doyle, the Conan Doyle Estate took charge, and ownership, of the characters of the Sherlockean world. Therefore, if any author wished to use a character that originated by Conan Doyle’s pen, they had to either seek a license to use the copyrighted work or seek permission from the Estate. The Estate would usually allow the use of Sherlock Holmes and the crew, for a license costing US$ 5000.
So, when Leslie Klinger and Laurie King sought to publish their new book called “In the Company of Sherlock Holmes,” the Good Samaritan Conan Doyle Estate reminded the publisher, Pegasus, of the need for a license and offered one for US$ 5000. The offer followed with a very unambiguous promise that, “If you proceed instead to bring out Study in Sherlock II (the original title of In the Company of Sherlock Holmes) unlicensed, do not expect to see it offered for sale by Amazon, Barnes & Noble, and similar retailers. We work with those companies routinely to weed out unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate to do so with your book as well.”[ii]
The point was well-made and fear was struck in the heart of Pegasus, who refused to move forward with the book in the absence of a license. Author, Klinger, refused to submit to the demands because he believed that the Sherlockean characters were part of the public domain, rightly-so, and hence a license was not needed from the Conan Doyle Estate. With that belief in mind, Klinger approached the Court against the Conan Doyle Estate seeking a declaratory judgment on the issue-at-hand i.e., whether he was free to copy the characters of Sherlock and Watson that were in the public domain. Circuit Judge Posner found that 46 stories and 4 novels written by Sir Conan Doyle, before 1923, had an existing copyright for 75 years from the date of publication, which would have expired, without any uncertainty, in 1997. As for the 10 stories written between 1923 and 1927, an amended law governed the copyright therein, hence, the copyright shall continue to exist over them, until 95 years from the date of publication i.e., 2018-2022. Therefore, the original characters portrayed before 1923, including Sherlock Holmes, Dr. Watson and the rest of the crew, are part of the public domain and are protected by copyright, no more.
While the main Order was pronounced in June, 2014, the scope of Appeal to the US Supreme Court loomed over the author, Leslie Klinger, right up until November 3, 2014, when the Supreme Court rejected Conan Doyle Estate’s petition for a writ of certiorari. Therefore, as it stands, any/all characters of the Sherlockean world, except for the novel characters, or changes, introduced in the last 10 stories, are part of the public domain.
For something to be part of the public domain means that no individual owns a copyright over any part thereof, and anyone from the public can use the characters as protagonists in their stories, to suit their own view of the deductive sleuth and his world. Now, anyone can develop and adopt the traits, without the requirement of a license, of the detective with genius IQ, deerstalker hat and affinity to cocaine, but only in a literary manner of speaking. Effectively, the Order of the Court of Appeals, US, did not lay down a new fact, but merely affirmed one that held a doubt.
– Post authored by Nitish Chaudhary
[i] Case No. 14-1128.
[ii] Refer to supra i.