Case closed, or so it appears, as the Supreme Court refused to grant cert to the Seventh Circuit’s holding that classic characters Sherlock Holmes and Dr. Watson are in the public domain.

Sir Arthur Conan Doyle published his first Sherlock Holmes story in 1886. Fans loved the character so much, the author couldn’t even kill him off. After a brief hiatus, Doyle brought the famous detective back. He kept publishing Holmes stories until 1927, three years before he died.

The dates are important here because 1923 is a magical year in copyright law—every work created before ’23 is in the public domain (except for Happy Birthday). Leslie Klinger thought this meant that the Sherlock Holmes character was ripe for the taking. Klinger assembled a team of writers to craft new Holmes stories in a book called In the Company of Sherlock Holmes, which got the unwanted attention of Sir Arthur Conan Doyle’s estate. The estate demanded renumeration from Klinger’s publisher. On the first go-round, the publisher paid the estate, but when Klinger wanted to produce a follow-up and the publisher refused (worried about being sued, no doubt), Klinger filed a lawsuit against the estate.

The estate attempted to argue that Holmes was a complex literary character and could not be separated or broken apart into pre- and post-1923 characteristics. However, the case law, especially Siegel v. Warner Brothers Entertainment Inc., in which the Court disconnected usable and copyright protected characteristics of the popular superhero Superman, was not in the estate’s favor.

Judge Richard Posner of the Seventh Circuit, in an opinion awarding Klinger almost $31,000 in attorneys fees, could find “no basis in statute or case law for extending a copyright beyond its expiration.” Thus, the pre-1923 Sherlock Holmes character is in the public domain. This means that, while waiting for the BBC series to return to air, fans can write their own Sherlock stories. Just make sure you don’t add any post-1923 characteristics. Those novels and stories are still owned and protected by Doyle’s estate. As for the distinction between pre- and post-1923 Sherlock Holmes, that’s a mystery worth solving yourself.

 

Doruk Onvural

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