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The estate of Sir Arthur Conan Doyle has finally answered a lawsuit brought by Leslie Klinger, an author, editor and Sherlock Holmes expert who is attempting to demonstrate that the copyright has expired on major story elements of the famous detective.
Klinger sued in February and wants an order that enjoins the Doyle estate from further asserting certain rights. Throughout the years, there have been many versions of Sherlock Holmes, including Warner Bros.’ two recent films starring Robert Downey Jr. and CBS’ Elementary, which gives a modern take on the character. Klinger worked on the book, In the Company of Sherlock Holmes, and, in the course of doing so, was contacted by agents for the Doyle estate who asserted a license was needed. Instead of agreeing, Klinger sought a declaratory judgment in Illinois federal court, pointing out that many of Doyle’s stories were published before the 1920s, which, it’s argued, puts them in the public domain.
And the estate’s response?
“Plaintiff’s position would create multiple personalities out of Sherlock Holmes: a ‘public domain’ version of his character attempting to only use only public domain traits, next to the true character Sir Arthur created. But there are not sixty versions of Sherlock Holmes in the sixty stories; there is one complex Sherlock Holmes. To attempt to dismantle Holmes’s character is not only impossible as a practical matter, but would ignore the reality that Sir Arthur Conan Doyle created a single complex character complete in sixty stories.”
Sherlock Holmes first appeared in publication in 1887 and his story was told over many years. The copyright term is life of the author plus 70 years or 95 years after publication, whichever is earliest. How many of Doyle’s Holmes stories are “in” copyright depends on how you count, and in its response, the estate counts ten.
Klinger says that most of what we know about the detective character was published in stories before the 1920s. And after the lawsuit was filed, Doyle’s estate didn’t respond, leading to a default. But since Klinger aims for more in a summary judgment that would open up rights for others without any concern, Doyle’s estate has another opportunity to weigh in.
And so it has.
Holmes’ psychological disposition has been well-deconstructed over the years, and now, the Doyle estate is exploiting psychological theory to make its copyright defense.
“Plaintiff takes an approach that appears eminently reasonable: a list of ‘the characters, character traits, dialogue, settings, artifacts, storylines and other story elements’ introduced in Sir Arthur’s pre-1923 public domain works,” the estate says. “This approach is reasonable for dialogue, artifacts and storylines created in the pre-1923 works. But the characters of Holmes and Watson were not completely created in pre-1923 works — a fact Plaintiff’s own list of ‘Sherlock Holmes Story Elements’ admits.”
The argument continues …
“Although Holmes and Watson were introduced in Sir Arthur’s 1887 novel A Study in Scarlet, the characters were not fully created or disclosed in that novel,” says the defendant’s papers. “Sir Arthur continued to create Holmes’s and Watson’s characters throughout the Canon, adding attributes, dimensions, background and both positive and negative change in the characters until the last story.”
Examples are given: Over time, Holmes softens and grows more emotional over time. Holmes becomes the closest of friends with Dr. Watson, his sidekick. Holmes gets over his distaste for dogs and becomes fascinated with them. He becomes less racially tolerant. And so forth.
Ultimately, it adds up to, um, something. Psychologists debate whether the self is a unified whole or fragments. Doyle’s position in this lawsuit seems to be unitary. It doesn’t hurt that there are possibly copyright advantages if a judge accepts this theory.
“Thus at any given point in their fictional lives, the two men’s characters depend on the Ten Stories,” it says. “It is impossible to split the characters into public domain versions and complete versions.”
The defendant proposes that case law and commentary are geared towards the understanding of “flat entertainment characters” that are “completed in the first story in a series,” saying that “no court has addressed this issue in the context of a complex literary character created over a substantial corpus.”
The Doyle estate makes the case for a special breed of “complex literary characters” (unlike alleged “flat” television ones like Amos ‘n’ Andy) who develop their personalities, not always as expected, presumably making them more real. The defendant says, “Sherlock Holmes is such character, having all of the complex background and maturing emotions, thoughts, relationships and actions that characterize human development over time.”
In short, it’s an argument that rejects certain temporal views of copyright and certainly has implications to what’s commonly assumed about the copyright term, which in the minds of many, is analogous to a clock. It’s now up to the investigating judge to entertain this intriguing theory and see if the logic holds up as elementary.
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