Is copyright a greater foe to Sherlock Holmes than Moriarity? The answer depends on what a court says – and whether you think that the duration of copyright protection in the United States is too lengthy.
In the United States the current duration of copyright protection is generally the life of the author plus 70 years (with some notable exceptions). Many older works, generally speaking those works published before January 1, 1923, are in the public domain, which means anyone can copy, publish, and modify them without restriction in the United States.
The duration of copyright protection is very controversial. The duration was challenged in the Supreme Court, which ruled in 2003 that the current term structure is constitutional. But, the criticism of how long a copyright remains in force continues to be strong. (I have long thought that the real issue will be when the biotech revolution extends life to, say, 200 years. Maybe critics are focusing too much on the 70 years and not the life portion of the copyright term formula?)
Leslie S. Klinger sued the Conan Doyle Estate, Ltd. in federal court in Chicago alleging that the Doyle Estate is wrongly claiming copyright in some of the Sherlock Holmes stories that were first published before January 1, 1923.
Mr. Klinger is a Sherlock Holmes scholar and fan. He co-edits books by contemporary authors who write new Sherlock Holmes stories. The court papers detail the negotiations of the editors for rights with various publishers and the Estate. Mr. Klinger sought a declaratory judgment declaring that some of the Sherlock Holmes stories are in the public domain, and therefore he may publish these works as well as derivative works based upon those particular stories. A good summary of the issues can be found here.
We haven’t yet seen the Estate’s Answer to the Complaint. But, the New York Times reports, “The estate, meanwhile, is standing firm. ‘The character Sherlock Holmes is protected by copyright,’ said Benjamin Allison, a lawyer for the estate, adding, ‘Holmes is a unified literary character that wasn’t completely developed until the author laid down his pen.’”
So, it looks like part of the defense will be that the evolution of the character is protectable. In other words, the possible public domain status of some copyrighted works doesn’t cause the entire character to fall into the public domain, too. Characters are protectable under copyright. It’s true that we often know more about fictional characters than we do about many real people in our real lives. We know how Bruce Wayne’s parents died, how and why Superman came to Earth from Krypton, that Bart Simpson’s blood type is Double O Negative, and James Bond’s favorite shaken but not stirred drink. The indicia of these characters do indeed develop and evolve over time. The ramifications on how long a character is protected by copyright are enormous for movie franchises, especially those based on literary works or comic books like James Bond, Iron Man, Batman, etc. The Sherlock Holmes franchise is alive and financially valuable in all media.
It won’t take the world’s greatest detective and his ever-loyal Dr. Watson to solve this case. A federal judge and jury will have to deduce the answer to the curious copyright of Sherlock Holmes.
In February 2015, our colleague and friend, partner Mark Fischer, passed away. We have made his blog posts available in honor of both his nuanced and wide-ranging knowledge of intellectual property, new media and entertainment law and of his entertaining style. Please read our tribute to Mark in the firm’s Alumni Spotlight publication and his obituary in the Boston Globe.