Today the Seventh Circuit Court of Appeals handed down a ruling on Klinger v. The Conan Doyle Estate regarding the copyright status of Sherlock Holmes and Dr. Watson as characters. If you haven’t been following this (as, indeed, I had not been), the basics of the suit are as follows: Leslie Klinger edited an anthology of stories called A Study In Sherlock, inspired by the canon works (the original novels and short stories by Sir Arthur Conan Doyle). The Conan Doyle Estate strong-armed his publisher into paying them a licensing fee to use the characters. When Klinger tried to publish a sequel with a different publisher, the estate again approached them demanding payment of their fee and threatening them with legal repercussions if they didn’t pay. As a result, the publisher refused to publish the work unless Klinger obtained a license. Rather than pay for a license, Klinger filed a suit seeking a declaratory judgement stating that he is free to use the characters because they are no longer under copyright and are thus in the public domain.
Prior to 1998 the length of copyright protection was 75 years from the date of publication. In 1998 that was extended, for old works still under copyright, to 95 years from the date of publication. 1998 – 75 = 1923, so anything written before 1923 was already out of copyright and not affected by the new law. Under current copyright law, new works are protected for the life of the author plus 70 years.
The Sherlock Holmes canon consists of four novels and fifty-six short stories. All four of the novels and forty-six of the stories were published before 1923, the earliest being in 1887. Ten of the stories were published between 1923 and 1927 and are still in copyright, which was the basis for the Conan Doyle Estate’s claim to ownership of the characters.
The court’s ruling is available here and is well worth reading. They found that characters cannot be copyrighted except as part of a published work. Thus, Sherlock and Watson became part of the public domain when the first literary piece depicting them went out of copyright. Any original elements of their characters that didn’t appear until the later stories are still under copyright until the story they appeared in enters the public domain.
The thing that stood out to me most, reading about this case, was one of the arguments that the estate used to try to persuade the court that they should extend their copyright protection beyond that set out in the law. I’m going to quote directly from the decision here:
“Lacking any ground known to American law for asserting post-expiration copyright protection of Holmes and Watson in pre-1923 stories and novels going back to 1887, the estate argues that creativity will be discouraged if we don’t allow such an extension. It may take a long time for an author to perfect a character or other expressive element that first appeared in his early work. If he loses copyright on the original character, his incentive to improve the character in future work may be diminished because he’ll be competing with copiers, such as the authors whom Klinger wishes to anthologize.”
So, in other words, I might not be inspired to keep writing about my characters SEVENTY YEARS AFTER I DIE?
I wonder what Sherlock would make of that argument?