BREAKING NEWS: 7th Circuit confirms that Sherlock Holmes is in the public domain

Poppy's fashionable twist to the
traditional Sherlock Holmes ensemble:
but will it be sufficiently original?

Today the US Court of Appeals for the 7th Circuit issued its decision in Leslie Klinger v Conan Doyle Estate, in which it held that #freesherlock is the answer to the fascinating copyright saga that has kept Sherlock Holmes and Dr Watson's fans in an almost unbearable state of suspense for some time.

Writing on behalf of the Court, Circuit Judge Richard Posner [who - this Kat is told - is known as a huge cat lover] nicely summarised what this case was about.  

Arthur Conan Doyle published the first Sherlock Holmes story in 1887 and the last of 56 stories in 1927. Because of statutory extensions of the term of protection in the US [the last was the 1998 Copyright Term Extension Act, which was at the centre of the US Supreme Court decision in Eldred v Ashcroft], copyright in 10 of these stories would not expire until 95 after the date of first publication, that is between 2018 and 2022. All the other stories and 4 Sherlock Holmes novels are already in the public domain, since they were first published before 1923 [those interested in details of why this is the case may read the Renoir decision].

Leslie Klinger co-edited an anthology of stories written by modern authors but inspired by, and in most cases depicting, "the genius detective Sherlock Holmes and his awed sidekick Dr. Watson". This book was published in 2011 with the title A Study in Sherlock: Stories Inspired by the Sherlock Holmes Canon [available on Amazon here in case you are thinking of a copyright-inspired present for someone]. 

Mr Klinger did not seek to obtain a licence from the Doyle estate to publish the stories in his anthology, although in the end Klinger's publisher (Random House) agreed to pay a $5000 licence fee.

Following the success of the first anthology, Klinger and his co-editor decided to have a sequel to A Study in Sherlock, to be titled In the Company of Sherlock Holmes and be published by Pegasus Books. Again, the Doyle Estate requested payment of a copyright licence, although it did not directly threaten to sue Pegasus Books for copyright infringement. The warning was nonetheless effective, and Pegasus Books informed Klinger and his co-editor that it would not publish this new work without a licence from the Doyle Estate.

What does one do when he is not willing to get a licence? In some cases what Mr Klinger did, ie launching a website and suing the Doyle Estate seeking a declaration from the US District Court for the Northern District of Illinois - Eastern Division that he was free to use material in the 50 Sherlock Holmes stories and novels that are no longer protected by copyright.

The District Court agreed with Mr Klinger, as former guest Kat Miri reported here. Thus, the Doyle Estate appealed the decision before the 7th Circuit on two grounds, one being jurisdiction and the other that "copyright on a “complex” character in a story, such as Sherlock Holmes or Dr. Watson, whose full complexity is not revealed until a later story, remains under copyright until the later story falls into the public domain".

As Judge Posner explained, what the estate argued is that the fact that early stories in which Holmes or Watson appeared are already in the public domain does not permit their less than fully "complexified" characters in the early stories to be copied even though the stories themselves are in the public domain.

Judge Posner recalled the decision in Silverman v CBS, in which the 2nd Circuit held that when a story falls into the public domain also its story elements - including its characters - do. Works derived from earlier works whose copyright has expired may nonetheless be protected, but copyright will only extend to the "incremental additions of originality contributed by the authors of the derivative works." 

Was this the case of the final 10 Sherlock Holmes stories which are derivatives from the earlier stories? 

According to Circuit Judge Posner: not really. Actually, he noted that the idea of extending copyright protection to the Sherlock Holmes and Watson characters because of those final 10 stories might be dangerous from a policy perspective. This is because:

The term extension washing machine 

"extending copyright protection is a two-edged sword from the standpoint of inducing creativity, as it would reduce the incentive of subsequent authors to create derivative works (such as new versions of popular fictional characters like Holmes and Watson) by shrinking the public domain. For the longer the copyright term [according to Posner's calculation, in this case the Doyle Estate was seeking 135 years of copyright protection] is, the less public domain material there will be and so the greater will be the cost of authorship, because authors will have to obtain licences from copyright holders for more material - as illustrated by the estate's demand in this case for a license fee from Pegasus ... The [Doyle Estate]'s proposed rule would also encourage authors to continue to write stories involving old characters in an effort to prolong copyright protection, rather than encouraging them to create stories with entirely new characters. The effect would be to discourage creativity."

This statement by District Judge Posner does not sound too surprising, especially if one is familiar with his earlier works [his co-authored The Economic Structure of Intellectual Property Law was actually the first international IP book that this Kat bought when she was still an undergraduate at the University of Florence].

Maybe not this time ...

District Judge Posner also rejected the idea that details that made the Holmes and Watson characters "rounder", eg the fact that Holmes's attitude towards dogs changed or that Watson had been married twice, would amount to an increment of originality for the sake of (new) copyright protection. These two characters "were "incomplete" only in the sense that Doyle might want to (and later did) add additional features to their portrayals. The resulting somewhat altered characters were derivative works, the additional features of which that were added in the ten late stories being protected by the copyrights on those stories. The alterations do not revive the expired copyrights on the original characters."

On a final note and in a comparative perspective, a pretty interesting part of the Court's decision [which is very interesting and well worth reading per se] is the rejection of any criterion of confusion/dilution in copyright law. This is particularly timely if one considers the Opinion of Advocate General Cruz Villalon in Case C-201/13 Deckmyn [here and here], in which he imported "lack of confusion" into his analysis of the parody exception within Article 5(3)(k) of the InfoSoc Directive.