The Expiring Detective's Last Case?

Back in March, Jeremy posted a blog alerting us to the lawsuit  brought by Leslie Klinger, a Los Angeles attorney, against the Estate of Sir Arthur Conan Doyle -- the creator and author of a series of fictional works featuring the legendary investigator and crime-solver Sherlock Holmes, the London-based "consulting detective"who lived at 221B Baker Street and whose abilities border on the fantastic; Holmes is famous for his astute logical reasoning, his ability to adopt almost any disguise, and his use of forensic science skills to solve difficult cases - along with his trusted sidekick, Dr Watson.

Jeremy Brett as Holmes in 1985

According to the Complaint, filed in a federal court in Illinois (the location of the Estate’s US licensing agent), Mr Klinger is the author of numerous books and articles relating to the “Canon of Sherlock Holmes, a phrase that refers to the four (4) novels and fifty-six (56) stories by Sir Arthur Conan Doyle featuring the fictional character of Sherlock Holmes and other related characters and story elements”.  

Wiki tells us that the books and stories were actually written in two distinct phases: Conan Doyle wrote the first set of stories over the course of a decade. Wanting to devote more time to his historical novels, he killed off Holmes in "The Final Problem", which appeared in print in 1893 but is set in 1891. After resisting public pressure for eight years, the author wrote The Hound of the Baskervilles, which appeared in 1901, implicitly setting it before Holmes's "death". In 1903, Conan Doyle then wrote "The Adventure of the Empty House", set in 1894, in which Holmes reappears and explains to a shocked Watson that he had only faked his death in "The Final Problem" to fool his enemies. "The Adventure of the Empty House" marks the beginning of the second set of stories, which Conan Doyle continued to write until 1927.

Mr Klinger’s complaint centres on the position taken by  the Conan Doyle Estate which, despite the fact that all but ten of Conan-Doyle's works should have entered the public domain in the US, argues that all elements of the Canon of Sherlock Holmes remain protected by copyright because, “Holmes is a unified literary character that wasn’t completely developed until the author laid down his pen.”  In other words, the character of Sherlock Holmes and all related copyright elements remain protected until 2023, drawn from the date upon which the final story published by Sir Conan Doyle enters the public domain.   Mr Klinger’s view, and the view of other, sympathetic authors who have created new stories based on elements from the public domain works of Sir Conan Doyle, is that licensing fees demanded by the Estate are not necessary,  and Klinger sought a declaratory judgment that only new, original elements first published in the stories that remain under copyright protection are still protectable and that copyright no longer protects any elements that had already been published in earlier Sherlock Holmes works, so all such elements must now be in the public domain. 

Basil Rathbone as Holmes with
Nigel Bruce as Dr Watson in 1939

TechDirt now reports that the Conan Doyle Estate has now (finally) filed its response to the motion for summary judgment, adding as comment that this is "an astounding study of ignorance concerning copyright law and the public domain" and that "While it admits that there are only ten short stories (from that one remaining book) that are under copyright, it still argues that those ten stories lock up pretty much everything else. First, it argues that the characters of Sherlock Holmes and Dr. Watson continued to grow as personalities in those last ten stories, and that the stories were non-linear (i.e., some took place earlier in their fictional lives), it more or less encompasses everything, even those public domain works" 

That  said, the new filing goes some way in explaining the Estate's position:

"The facts are that Sir Arthur continued creating the characters in the copyrighted Ten Stories, adding significant aspects of each character’s background, creating new history about the dynamics of their own relationship, changing Holmes’s outlook on the world, and giving him new skills. And Sir Arthur did this in a non-linear way. Each of the Ten Stories is set at various points earlier in the two men’s lives—and even late stories create new aspects of the men’s youthful character. In other words, at any given point in their fictional lives, the characters depend on copyrighted character development."

and specifically

"If the creation of the characters was complete in works published in the United States before 1923, the characters are in the public domain. If, however, the characters as works of authorship were only completed in copyrighted stories published in 1923 or after, the characters are works of authorship protected by United States copyright law."

explaining 

"Sir Arthur Conan Doyle created a single complex character complete in sixty stories" and the filing suggests that the public domain clock only begins at the point where the "creation of the characters was complete."

Sherlock Holmes Baffled - the 1900 film

So now the US courts must decide - can the character outlive, at least in terms of copyright, the earlier body of work? The Estate thinks so - but TechDirt begs to differ, saying "thus, it's insane and nonsensical that all Sherlock Holmes works haven't bee in the public domain since 1983. However, hopefully this case will show that nearly all of Holmes and Watson are, in fact, in the public domain". 

As far as US case law on copyright, the Estate may have some problems as there is the 1989 decision of the US Appeals Court for the Second Circuit blocking the way: in Silverman v. CBS the court ruled that the original radio scripts and the characters in "Amos 'n' Andy" were in the public domain, even though some later television shows owned by CBS were not, saying "The fundamental copyright principle applicable to this case is that a copyright affords protection only for original works of authorship and, consequently, copyrights in derivative works secure protection only for the incremental additions of originality contributed by the authors of the derivative works" saying

"With respect to the "Amos 'n' Andy" characters, which are at the heart of this litigation, we have no doubt that they were sufficiently delineated in the pre-1948 radio scripts to have been placed in the public domain when the scripts entered the public domain.  . . .  What Silverman may not use, however, is any further delineation of the characters contained in the post-1948 radio scripts and the television scripts and programs, if it is ultimately determined that these last items remain protected by valid copyrights."

The 2011 Movie: A Game of Shadows

But it's clearly an important issue for the Estate: The Universal Sherlock Holmes (1995) by Ronald B. DeWaal lists over 25,000 Holmes-related productions and products, and it has been estimated that Sherlock Holmes is the most prolific screen character in the history of cinema; the earlies short film was made in 1900, and most recently both Benedict Cumberbatch and Robert Downey Jr have played the great detective, with Martin Freeman and Jude Law as their respective Dr Watsons, the last movie being the 2011 released Sherlock Holmes: A Game of Shadows, some 111 years later than the first.

Jeremy posed this question in his March blog "Can copyright of all works in a series legitimately be extended until the natural expiration of the copyright term for the final work in the series? and his comment to that question is still apt: "The answer to this question could have a broad impact on the status of copyrights held by authors who create series of works over many years."

Image rights and, to an extent, Trade Marks and passing off have been used to protect both real and fictional characters (including Paul Hogan's Crocodile Dundee and the Teenage Mutant Ninja Turtles) - and this system, whilst having limitations - seems to work: Should copyright function in the same way? And if the answer to that is 'yes' - and clearly copyright can protect original characters - how and when should a 'copyright' in a character subsist? On that character's first outing - or at the end of a long and detailed journey?

My thanks to Nick Greenfield and Melanie Leggett at Egmont UK for alerting me to this update - clearly better copyright sleuths than me!

More from Miri Frankel on the IPKat here 

Silverman vs CBS Inc., 870 F.2d 40 (1989)
Teenage Mutant Ninja Turtles: Mirage Studios v Counter-Feat Clothing Company Limited [1991] FSR 145
Crocdile Dundee: Hogan and Another v Koala Dundee Pty Limited and others (1988) 20 FCR 314
Any similarity of my title to The Dying Detective is somewhat intentional