The Verdict Is Kind of In on the Copyright for the Character of Sherlock Holmes

by John Aquino on 01/02/14

The U.S. District Court for the Southern District of New York issued its opinion in the case of Klinger v. Conan Doyle Estate Ltd. on Dec. 26, 2013 and rejected the estate's (and my) argument that the characters of Sherlock Holmes and Dr. John Watson are still protected by U.S. copyright law even though the books and stories that originated the characters of Holmes andWatson have fallen into the public domain.

The ruling was viewed in the media as a clear victory for the plaintiff Leslie S. Klinger, who had asked the court for a declaratory judgment that the characters of Sherlock Holmes and Dr. John Watson were no longer protected by copyright in the United States and that he could then publish a collection of new stories about Holmes and Watson without paying the estate a licensing fee. The characters of Holmes and Watson are considered "hot" since Robert Downey Jr. and Jude Law have played them in two successful movies and there are separate television series using the characters in contemporary settings currently playing in the UK and the United States.

On close reading, the court's decision is a blow to the Conan Doyle estate but not necessarily the clear victory for those wishing to use the characters without fee some would think.

The argument the estate--and separately I in these blogs--proposed is that the use of the characters by the original author--Doyle--in post-1923 stories that are still protected by U.S. copyright laws was essentially part of the continued development of the characters by the author. The characters, the estate contended, were therefore still protected by the law. Judge Ruben Castillo rejected the argument, calling it "novel," and relied on the 1989 decision by the U.S. Court of Appeals of the Second Circuit in Silverman v. CBS, 870 F.2d 40 (2d Cir. 1989) concerning pre-1948 radio scripts for the Amos & Andy Show. The scripts had fallen into the public domain because the owner had not renewed the copyright as then required by the law. Silverman wanted to write a musical based on the characters of Amos and Andy, but CBS demanded that he obtain a license from the network.

Silverman had argued, as did Klinger later, that the characters of Amos and Andy had fallen into the public domain when the copyright for the original scripts had. The court found that pre-1948 elements of the characters had indeed fallen into the public domain but that post-1948 elements, including those added to the characters when the show was transferred from radio to television, were protected by copyright as "increments of expression."

The Conan Doyle estate had attempted to distinguish the complex and fully developed characters of Holmes and Watson from the stereotypical characters of Amos and Andy. But Castillo played it straight down the line and wrote that Silverman and subsequent rulings had allowed for no such distinctions. 

Accordingly, Castillo found that pre-1923 elements of the characters of Holmes and Watson were in the public domain but that post-1923 elements were not.

Klinger had argued that the post-1923 elements of the characters were simply events such as Watson's second marriage, but the court hewed to the Silverman line of "increments of expression" being protected by the law. The court also denied Klinger's request for an injunction preventing the Conan Doyle estate from ever suing for infringement of the Holmes and Watson characters again.

The court stressed that Klinger had not asked the court whether his new anthology would infringe copyrights held by the Conan Doyle estate but the extent to which elements of the characters were protected by copyright.

Klinger proclaimed victory, stating that he was going ahead with the new anthology and would stay away from post-1923 elements of the characters.  

The attorney for the Conan Doyle estate said the estate is considering an appeal but stated that neither its existing licensing agreement for the movies and television series nor its claims under trademark law were affected by the court's ruling. He also indicated that the characters of Holmes and Watson are highly delineated and depend on elements introduced in the post-1923 stories that are protected by U.S. copyright law and that go beyond such elements as Watson's athletic ability.

And so, the scene is likely set either for an appeal or an infringement suit once Klinger's book comes out, highlighting elements of the Holmes and Watson characters that, the estate claims, are still copyright protected.

Copyright 2014 by John T. Aquino. This article is intended for educational purposes and does not constitute a legal opinion.