July 30, 2013 1:40pm PT by Eriq Gardner
Sherlock Holmes: A Step Closer to Being Ruled in the Public Domain
In February, Leslie Klinger, the author of The New Annotated Sherlock Holmes, brought a lawsuit in Illinois federal court that sought a declaratory judgment that the copyright has expired on Sherlock Holmes story elements and an order that would prohibit the estate of Sir Arthur Conan Doyle from asserting certain rights to the popular detective.
What came next was somewhat surprising.
Despite the fact that Sherlock Holmes has experienced a revival of late with two Warner Bros. films, a BBC series, and the hit CBS show Elementary, the Doyle heirs failed to respond. In late June, the court entered a default against the defendant for failure to timely appear.
But that's not the end of the story.
On Monday, Klinger, who served as a technical advisor on the films starring Robert Downey Jr., filed a motion for summary judgment. If the judge accepts the motion, it will likely mean the end to the Doyle estate's ability to collect licensing revenue from Sherlock Holmes spinoffs.
The Doyle estate has certainly made deals with big entertainment studios in the past few years. The Warner Bros. film, the BBC series and the CBS show are all listed on the Doyle estate's website. We hear that permission was given.
When Klinger and his publisher began preparing In the Company of Sherlock Holmes, a collection of new and original short stories by contemporary authors inspired by the Doyle canon, they too heard from the Doyle estate about the need to get a license.
Although Sherlock Holmes first appeared in publication in 1887 and seemingly would be out of copyright, some of Doyle's later work was published in various periodicals between 1921 and 1927. Having been published within the last 95 years meant those stories might still be locked up.
But it's Klinger's contention that the primary Holmes elements are free for anyone to use since the bulk of the Sherlock Holmes works had been published prior to Jan. 1, 1923. Klinger got a default, meaning he was likely to get a judgment that would allow his own co-edited book to come out without worry.
But he wants more.
"It is vitally important that a judgment on the merits be rendered rather than merely a default judgment," says Klinger's attorney in a summary judgment motion. "Unless a judgment on the merits is rendered, not only is Plaintiff likely to face an identical threat from Defendant on any succeeding books he may publish using the Sherlock Holmes Story Elements, other creators will face the same 'bullying' and abuse of the copyright laws by Defendant."
The motion adds, "Indeed, Plaintiff is well aware that Defendant has continued to assert its rights with other creators during the pendency of this case and has extracted license fees from creators unwilling to wait for the outcome of this case. Only a judgment on the merits in favor of Plaintiff will end this reprehensible conduct."
Although the Doyle estate failed to respond to the lawsuit, it still has the opportunity of objecting to the summary judgment motion. But time is running out. The judge is preparing his own investigation into the state of the Sherlock Holmes copyright, and a ruling that irrevocably puts the detective character story into the public domain could be coming soon. That wouldn't mean that CBS, the BBC and others have no protection over their own versions of Sherlock Holmes. But it might mean that the estate is subject to an order that would prevent them from interfering with any new derivative version.