1709 Blog: for all the copyright community

Sunday, 29 December 2013

The Return of Sherlock Holmes?

Jeremy Brett as Holmes in 1985
Somewhat appropriately on the day that news broke that the two writers of the BBC's 'Sherlock' television series starring Martin Freeman and Benedict Cumberbatch revealed that they killed off Holmes in the final and sixth episode of the widely popular drama because they feared the BBC would axe the series, came news that the US District Court for the Northern District of Illinois had reached a decision in the case brought by Los Angeles-based attorney Leslie Klinger, who was seeking a declaratory judgement that all elements of the canon of Sherlock Holmes works published before 1923 are free for anyone to use. US copyright law, applied to the works of Sir Conan Doyle, creates a scenario whereby most of the works have entered the public domain, while only the ten stories that were published after January 1, 1923, published in The Case-Book of Sherlock Holmes, are still protected

Writers Steven Moffat and Mark Gattis said they used Arthur Conan Doyle's The Final Problem, the 25th and final short story in Conan Doyle's original series of works - when Holmes and Professor Moriarty both fall to their deaths from the Reichenbach Falls in Switzerland - and that they had included The Final Problem as well as the Irene Adler story (based on "A Scandal in Bohemia") and The Hound of the Baskervilles as the final three scripts for the second three part series because they were worried that the BBC series might not be around for long enough for them to run their favourite plots. But now back to the USA, and Mr Klinger's claim.

Miri Frankel first covered Mr Klinger's claim back March 2013 here on the 1709 Blog and we updated this in September in here in The Expiring Detective's Last Case? Mr Klinger’s complaint centred on the position taken by  the Conan Doyle Estate which argued that all elements of the Canon of Sherlock Holmes (the fifty-six short stories and four novels) 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.

The District Court first examined whether the Sherlock Holmes elements published prior to 1923 ("Pre-1923 Elements") are indeed elements that are no longer subject to copyright protection and are now in the public domain.  Applying the 1989 decision of the US Appeals Court for the Second Circuit in  Silverman v. CBS, Inc.the District Court explained, "[i]t 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."  Thus, as Miri explains over on the IPKat, the public may use the Pre-1923 Elements without obtaining a license from the Conan Doyle Estate.  

Basil Rathbone as Holmes with 
Nigel Bruce as Dr Watson in 1939
Miri explains that the District Court next turned to the question of whether elements of the Sherlock Holmes canon published after 1923 ("Post-1923 Elements"), such as Dr Watson's athletic background and Sherlock Holmes' retirement, are "increments of expression" that are copyrightable, or if the Post-1923 Elements are plot elements, ideas, or events that are not copyrightable.  Mr Klinger argued that these Post-1923 Elements are merely events in the lives of the Sherlock Holmes characters and are not subject to copyright protection. The District Court examined the Post-1923 works to determine whether they constituted "incremental original expressions" that are readily distinguishable from the prior works.  It concluded that, as storylines, new characters and new character traits, these Post-1923 Elements are indeed increments of expression that are and remain subject to copyright protection, "and as a result neither Klinger nor the public are entitled to use them." So - a partial but not complete victory for Mr Klinger - yes, he can use the first 25 works - but not new elements  introduced [post 1923. Elementary, my dear reader?

This is a good time for Sherlock-based entertainments, with  BBC's Sherlock is returning for its third series and CBS's Elementary is in the middle of its second season. A third Guy Ritchie-directed, Robert Downey Jr.- and Jude Law-starring movie is reportedly in the works - all licensed by Jon Lellenberg, who is the American agent for the Conan Doyle Estate.  That said, any writer basing new derivative works on the characters will need to be very careful. The District Court stopped short of granting a permanent injunction barring the Conan Doyle Estate from asserting copyright in the elements of the Sherlock Holmes canon, even those elements that the District Court agreed are in the public domain, so writers face the possibility of a license fee demand - or threat of litigation from the Conan Doyle Estate even for pre-1923 works - albeit surely such claims for a licence may well be unfounded in law - but maybe all but the brave will be deterred from entering this Valley of Fear. Let the Great Game commence. 


BBC One premiered a "Sherlock" mini-episode online on Christmas Day 2013, entitled "Many Happy Returns". It acts as a prequel to the upcoming third series, picking up two years after the second series finale. The synopsis for the episode reads "Sherlock has been gone for two years. But someone isn't quite convinced that he's dead." Indeed, it seems he is very much alive!

The District Court's decision can be found here and more here.  
More on Sherlock Holmes here.

Update: Post decision there have already been some moves by the Estate: It seems at the heart of this is that because the plaintiff Leslie Klinger did not seek a “judicial determination of the copyright status of the Sherlock Holmes character,” the court did not address the issue - and now the Estate's lawyer Benjamin Allison has said "While plaintiff Leslie Klinger sought a ruling that some of these character traits were free for all to use ..... the Court rejected Mr. Klinger's effort in this regard and held that all such characteristics of Holmes and Watson are protected.”  Klinger however, called Allison’s statement “a great attempt at spinning by the Estate,” after having lost on their theory of an “incomplete” character telling Publishers Weekly “The Court carefully said that it was not determining that the character was either in or out of copyright protection; Instead, the Court said that elements were free of protection.”

http://www.publishersweekly.com/pw/by-topic/digital/copyright/article/60503-conan-doyle-estate-says-sherlock-not-free-yet.html

1 comment:

Ben said...

UPDATE: perhaps unsurprisingly, the Conan Doyle Estate have said they are considering an appeal against Judge Ruben Castillo's decision. More here: http://www.usatoday.com/story/news/nation/2014/01/03/writer-doyle-estate-dispute-copyright-on-sherlock/4301193/