Book Editor vs. Doyle Estate: Is Sherlock Holmes Still in Copyright?

Elementary The Deductionist Lucy Liu - H 2013

Elementary The Deductionist Lucy Liu - H 2013

With Warner Bros.' Sherlock Holmes films, BBC's Sherlock and CBS' Elementary, the popular detective character has been experiencing a revival of late.

But the estate of Sir Arthur Conan Doyle, who created Sherlock Holmes, wants a sniff.

To many, it might seem outlandish that a character who first appeared in publication in 1887 could still be in copyright. The current U.S. law is life of the author plus 70 years or 95 years after publication, whichever is earliest.

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But don't tell that to Doyle's heirs, who are objecting to new Sherlock Holmes stories about to be published in book form. The dispute just became the subject of a lawsuit that was filed Thursday.

The lawsuit comes in Illinois federal court by Leslie Klinger, an author, editor and Sherlock Holmes expert who has written the Annotated Sherlock Holmes. He also was a technical adviser on Warner Bros.' two recent films starring Robert Downey Jr. as the famous detective.

In 2011, he along with Random House and Poisoned Pen Press published A Study in Sherlock Holmes, a collection of new and original short stories by contemporary authors inspired by the Doyle canon. Klinger and her co-editor Laurie King are now preparing a sequel, In the Company of Sherlock Holmes.

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Last year, agents for the Doyle estate contacted the Klinger and Random House and asserted rights. A license agreement was demanded, and an infringement threat allegedly was made. Klinger's attorney believes that that the estate had no valid rights, but to avoid litigation, Random House nevertheless entered into a license agreement for Study.

Then, in late November, the estate again demanded a licensing agreement on Company. The parties traded letters, but no deal was worked out. Instead, Klinger now is suing, citing a reasonable apprehension that the Doyle estate will file suit if the book is published. He is seeking a declaratory judgment that copyright has expired on Sherlock Holmes story elements and an order that enjoins the Doyle estate from further asserting certain rights.

Read the complaint here.

There's more to this.

Last year, we analyzed a potential legal conflict between the BBC series and the CBS show. Among the developments we pointed out was an old lawsuit that resulted after the USA Network produced a movie entitled Case of Evil about a young Sherlock Holmes. Pannonia Farms, which said it had been conveyed rights to Doyle's works, was the plaintiff. The lawsuit resulted in a judge's decision in 2004.

Doyle published most of his Sherlock Holmes work between 1887 and 1927. Anything before 1923 is likely in the public domain. The confusion comes from a bunch of stories that comprise The Case-Book of Sherlock Holmes, published in various periodicals between 1921 and 1927, which technically still would be within the copyright term.

In the 2004 decision, Judge Naomi Reice Buchwald counted nine of Doyle's 60 Sherlock Holmes stories still in copyright. Buchwald let USA off the hook because its TV movie was based on the many other stories in the public domain that had delineated the Holmes characters, but she left the door slightly ajar to a future lawsuit on other Sherlock Holmes work, saying, "Storylines, dialogue, characters and character traits newly introduced by the Nine Stories are examples of added contributions susceptible to copyright protection."

The new lawsuit by Klinger picks up this thread.

Although there might be stories by Doyle published late enough to theoretically enjoy copyright protection, Klinger essentially says "not so fast, your rights aren't broad."

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"None of the Sherlock Holmes Story Elements first appeared in The Case-Book of Sherlock Holmes or in the stories that comprise the collection, and none of the Sherlock Holmes Story Elements are protected by any copyright that might still apply to The Case-Book of Sherlock Holmes or its constituent stories under U.S. law."

In other words, take the character of Dr. Watson, Sherlock's sidekick. He was first introduced in 1887's A Study in Scarlet, where it was said that he was an army veteran. It wouldn't matter if Doyle's later work re-introduced this fact. If someone wanted to write a story about Watson's army career, that's subject to the public domain.

Are there other elements that the Doyle estate still maintains? Perhaps.

Klinger believes he hasn't infringed any, but the case might explore the possibilities. CBS, BBC and Warner Bros. might be watching. Then again, considering the fact that there hasn't been any big public noise from the Doyle's estate on any of these major entertainment productions thus far, deductive reasoning might lead one to conclude that there have been deals made with the Doyle estate. (UPDATE: Yes, true.)

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