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Sherlock and the Mystery of the Public Domain

Posted By Anna Pifer-Foote, Sep 10, 2014

Klinger v. Conan Doyle Estate, Ltd., decided by the Seventh Circuit in June, helps to establish when literary characters become part of the public domain.

Editor of an anthology of modern works featuring Sherlock Holmes seeks to use the character without paying licensing fees.

Leslie S. Klinger is the co-editor of two modern anthologies of American works featuring Sir Arthur Conan Doyle’s Sherlock Holmes. Conan Doyle’s four novels and forty-six short stories were published in the United States prior to 1923, making them part of the public domain. Ten of his short stories remain under copyright protection because they were written after 1923.

When Random House published the first anthology, the Conan Doyle estate requested a licensing agreement. Although Klinger did not believe it was necessary, the publisher agreed to pay the fee. Klinger sought to have the second anthology published by Pegasus Books. The Conan Doyle estate again asked for licensing fees, and threatened to work with Amazon and other retailers to block the sale of the anthology without payment. Klinger brought this lawsuit, arguing that the characters are part of the public domain and, as such, modern authors may borrow them without paying a licensing fee.

Is Sherlock Holmes in the public domain, even though he appears in works still under copyright protection?

The question presented by this case is what to do with a character that is both in the public domain and still under copyright protection. Klinger sought, specifically, to have the court determine whether Sherlock Holmes and other characters created by Conan Doyle are part of the public domain.

The Conan Doyle estate argued that Sherlock Holmes and Dr. Watson continued to develop as characters in the ten short stories that remain out of copyright, and should therefore remain under protection. The estate argued that the characters were “flat” in the pre-1923 works, but then became more “rounded” in the stories still protected under copyright.

The court holds that Holmes and Watson are in the public domain.

The Seventh Circuit explains that a small public domain is bad for authorship because it requires more work from authors. Authors need the freedom to draw from the works of others. The court rejected the estate’s argument that Holmes and Watson became “more rounded” in the later stories, and should remain under copyright protection.

The ultimate holding of the court is that copyright protection of a character does not extend just because the character changed in subsequent works. The estate plans to appeal to the Supreme Court.

Comments

This holding suggests that once the character has been released to the public domain, subsequent changes by the author will not affect the public’s ability to use the character in derivative works. If, however, those derivative works too closely resemble the character’s subsequent changes, will the copyright holder be able to sue the derivative author?

This question may be especially interesting as we start to see long running animated characters entering the public domain. For instance, a character like Mickey Mouse looked completely different after the advent of computer animation. Cartoons featuring Steamboat Willie will enter the public domain long before the modern computer animated Mickey Mouse cartoons. In the future, will choosing to animate a character like Steamboat Willie digitally instead of hand drawing him infringe upon Disney’s ongoing copyright protection?

Sources

Klinger v. Conan Doyle Estate, LTD., 755 F. 3d 496 (2014). Opinion available here.

Further reading on the state of Sherlock in the public domain is available here.

Anna Pifer-Foote is a second year law student at UC Davis. She is serving as KHIPLA's secretary for the 2014-2015 school year and hopes to work in copyright or trademark law upon graduation.

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