Is Sherlock Holmes in the Public Domain?

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March 26 2013 11:21 AM

Is Sherlock Holmes in the Public Domain?

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Martin Freeman, Benedict Cumberbatch, and Rupert Graves, in the BBC series Sherlock.

Colin Hutton/Hartswood Films.

Is Sherlock Holmes in the public domain? In the United States, at least, it’s a somewhat tricky question—one that may soon be settled in court. Lawyer and Holmes scholar Leslie S. Klinger has sued the estate, which insisted that he pay a fee to them in order to publish a collection of short stories called In the Company of Sherlock Holmes.  One of the authors wanted to use a character from the 1924 Holmes story “The Adventure of the Illustrious Client.” The copyright to works published before 1923 have expired in the U.S., but since that story appeared after that date, Klinger asked the author in question to speak to the Conan Doyle estate.

The estate insisted that Klinger needed to license the whole book, and threatened to stop Amazon, Barnes & Noble, and other large companies from selling the book if he didn’t comply. Klinger and his coeditor, Laurie King, previously paid a $5,000 licensing fee to publish A Study in Sherlock, but they decided not to give in this time around.  The Conan Doyle estate is known for aggressively pursuing copyright claims, and most people looking to use the character—including the creators of the TV shows Sherlock and Elementary and the producers of the updated Sherlock Holmes movies—have paid licensing fees.  “Enough is enough,” Klinger told The New York Times in February,” This time it was really too big a threat.”

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Klinger’s lawsuit is a preemptive measure: If he wins he won’t have to pay a licensing fee for his book, and neither will other fans hoping to use Holmes and Watson in their own work. Klinger’s argument is that the famous Sherlock Holmes story elements—including Holmes’ deductive skills, his friendship with Watson, and his frequent disguises—mostly appear in pre-1923 stories and have thus passed into public domain with the earlier stories.  The estate maintains that the character as a whole remains under copyright until all of the stories are in the public domain. As the Estate’s lawyer, Benjamin Allison, told The New York Times last week, “Holmes is a unified literary character that wasn’t completely developed until the author laid down his pen.”

So who’s right? The lawsuit may prove contentious, but there is at least some consensus that Klinger’s argument is valid. Jennifer Jenkins, the director of Duke University's Centre for the Study of the Public Domain, for instance, told The Economist that “Sherlock Holmes and Watson are quite clearly in the public domain.” And overreaching literary estates haven’t had the best luck lately: James Joyce’s and William Faulkner’s heirs have lately lost fair use lawsuits.

I spoke to New York entertainment lawyer John J. Tormey, III, who explained that copyright can apply to both story elements and the stories themselves. “It's hard to imagine the character existing without his context,” he said. “More importantly here, it’s hard to imagine the context existing without the character inhabiting it,” Tormey said. “In my view, if the story lapses into the public domain, then the character within the story lapses into the public domain at the same time.” (The same logic applies to Zorro, whose public domain status will also soon be settled in court.)

Were Klinger to lose his case, it could set a dangerous precedent. “Copyright was intended by its progenitors to be a limited monopoly, not an indefinite monopoly,” Tormey said. “Allowing subsequent character-tweaks to resuscitate otherwise dead copyrights in stories would diminish predictability of result while encouraging chaos and overstatement of rights. Conan Doyle is dead. It’s not like he’s going to be offended by new writers putting Sherlock Holmes in new situations.” In other words, it’s elementary: Holmes’ literary afterlife should be open to everyone.

Alex Heimbach is a freelance writer based in Brooklyn. You can follow her on Twitter.

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