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Nodding to such entertainment fare as Star Wars, Shakespeare and Amos ‘n’ Andy, and pointing to the value of the public domain, the 7th Circuit Court of Appeals has affirmed a judgment holding that much of Sir Arthur Conan Doyle‘s Sherlock Holmes is free for public use.
Last year, Leslie Klinger, an author, editor and Sherlock Holmes expert, filed a lawsuit against the Doyle Estate in the midst of preparing In the Company of Sherlock Holmes, a collection of short stories by contemporary authors inspired by the Doyle canon.
Doyle’s heirs asserted a license was needed — they’ve apparently convinced CBS, BBC and Warner Bros. to play ball — whereas Klinger sought a declaratory judgment that copyright has expired on most Sherlock Holmes story elements, since all but about 10 of Doyle’s Sherlock Holmes stories predate 1923. This past December, an Illinois federal judge handed Klinger a victory.
On appeal, the Doyle camp attempted to raise an argument that had been unsuccessful at the district court: that Sherlock Holmes is a “complex” character, that his background and attributes had been created over time, and that to deny copyright on the whole Sherlock Holmes character would be tantamount to giving the famous detective “multiple personalities.”
On Monday, after dispensing with the Doyle estate’s other argument that the controversy wasn’t ripe enough to be adjudicated, 7th Circuit Judge Richard Posner rejected that assessment. “We cannot find any basis in statute or case law for extending a copyright beyond its expiration,” writes Judge Posner. “When a story falls into the public domain, story elements — including characters covered by the expired copyright — become fair game for follow-on authors, as held in Silverman v. CBS Inc.”
Silverman refers to a dispute involving Amos ‘n’ Andy, who appeared in radio scripts whose copyright had expired. The Doyle appellants contend that Amos ‘n’ Andy were “flat” characters as opposed to “complex,” and judge Posner could hardly contain himself in ridiculing the supposed differences, noting that at oral hearings, Doyle’s lawyer dramatized the concept of a “round” character by tracing large circles with his arms. The judge also writes, “A contemporary example is the six Star Wars movies: Episodes IV, V, and VI were produced before I, II, and III. The Doyle estate would presumably argue that the copyrights on the characters as portrayed in IV, V, and VI will not expire until the copyrights on I, II, and III expire.”
Nonsense, says the judge. “What this has to do with copyright law eludes us,” he writes. “There are the early Holmes and Watson stories, and the late ones, and features of Holmes and Watson are depicted in the late stories that are not found in the early ones. … Only in the late stories for example do we learn that Holmes’s attitude toward dogs has changed — he has grown to like them — and that Watson has been married twice. These additional features, being (we may assume) ‘original’ in the generous sense that the word bears in copyright law, are protected by the unexpired copyrights on the late stories.
“But Klinger wants just to copy the Holmes and the Watson of the early stores, the stories no longer under copyright. The Doyle estate tells us that ‘no workable standard exists to protect the Ten Stories’ incremental character development apart from protecting the completed characters.’ But that would be true only if the early and the late Holmes, and the early and the late Watson, were indistinguishable — and in that case there would be no incremental originality to justify copyright protection of the ’rounded’ characters … in the later works.”
Judge Posner goes through the example of another famous author (Shakespeare) who used the same character in successive works, rhetorically questioning what the Doyles would think about that.
His opinion, though, is as much a defense of a robust public domain as anything else. If courts interpret copyright laws as Doyle’s side wants, that might mean writers continuing to work on old characters instead of creating new ones. “The effect would be to discourage creativity,” writes Posner. And while that might then mean that writers don’t perfect old works, Posner says “other artists will have a greater incentive to improve it, or to create other works inspired by it, because they won’t have to pay a license fee to do so provided that the copyright on the original work has expired.”
Added up, the judge says that the case to incentivize complexity in fiction can’t mean extending intellectual property ownership forever. Judge Posner concludes, “The spectre of perpetual, or at least nearly perpetual, copyright … looms, once one realizes that the Doyle estate is seeking 135 years (1887–2022) of copyright protection for the character of Sherlock Holmes as depicted in the first Sherlock Holmes story.”
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