Sherlock Holmes: Judge Declares Popular Detective in Public Domain

Sherlock Holmes A Game Shadow - Movie Poster - 2011
Warner Brothers

Sherlock Holmes is not dead. The BBC recently made that clear in a mini-episode for Sherlock. Now, much of what we know about the popular detective character belongs to all.

So says a federal judge in Illinois tasked with determining whether a character who first appeared in publication in 1887 could still be in copyright.

The lawsuit was brought by Leslie Klinger, an author, editor and Sherlock Holmes expert who has written The New Annotated Sherlock Holmes and contributed to an anthology entitled In the Company of Sherlock Holmes. Klinger reported being threatened by the estate of Sir Arthur Conan Doyle and sought a judicial declaration that most of the stories and characters in the Holmes canon were old enough that they belonged in the public domain. In response, attorneys for the Doyle estate raised the compelling argument that because Holmes' character was developed over time, it was impossible to dismantle the detective's personality into both in- and out-of-copyright parts.

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All but about 10 of Doyle's Sherlock Holmes stories predate 1923, and the essential issue of this dispute was to determine what that meant exactly. The current U.S. term of copyright is the life of the author plus 70 years or 95 years after publication, whichever is earliest.

The Doyle estate attempted to distinguish between "flat entertainment characters" like Amos 'n' Andy, the subject of an old legal dispute, and "complex literary characters" like Sherlock Holmes, who according to the defendant, had a "complex background and maturing emotions." To deny the estate copyright on the whole character, it was argued, would be to give the detective "multiple personalities."

In a ruling (read here), U.S. District Judge Ruben Castillo sticks to the basics of copyright law, and nodding to that Amos 'n' Andy case and others involving the character of Sherlock Holmes, finds that only expression -- dialogue, characters and traits -- newly introduced by those post-1923 stories are protected by copyright.

"It is a bedrock principle of copyright that 'once work enters the public domain it cannot be appropriated as private (intellectual) property,' and even the most creative of legal theories cannot trump this tenet," writes the judge. "Having established that all but the Ten Stories have passed into the public domain, this Court concludes that the Pre-1923 Story Elements are free for public use."

To the Doyle estate's warning against splitting Sherlock Holmes into in- and out-of-copyright elements, Judge Castillo says that is exactly what prior courts have done. And the judge adds that adopting the position of Doyle "would be to extend impermissibly the copyright of certain character elements of Holmes and Watson."

Of course, there are still elements of the Sherlock Holmes story that aren't free to be used by all. In the ruling, the judge discusses some of the elements in post-1923 stories, including Dr. Watson's second wife and Holmes' retirement from his detective agency. Klinger argued that such elements were "events," but the judge says the plaintiff hasn't made an availing argument that they aren't protected.

As a result, Doyle at least gets something. (The estate is also signaling that it intends to protect its trademarks going forward.) Overall though, Klinger wins the desired judgment -- #FreeSherlock was his Twitter hashtag --  allowing him to go forward with the Sherlock Holmes anthology and others to use whatever they wish of the pre-'23 stories.

Twitter: @eriqgardner