The Public Domain: “It’s Elementary, My Dear Watson…”

Yesterday, 16 June 2014, a unanimous (3-0) panel of the 7th Circuit Court of Appeals (based in Chicago), handed down this decision by Judge Richard Posner in Klinger v. Conan Doyle Estate, Ltd. (Judge Posner was joined by Judges Joel Flaum and Daniel Manion.) The Court decided against the Conan Doyle Estate in its copyright appeal. As UCLA Law Professor Eugene Volokh aptly observes, most of the Sherlock Holmes canon is now in the public domain (e.g. it can be freely used or remixed for derivative works).

Mr Leslie Klinger had co-authored a successful Sherlock Holmes anthology, so he and his co-author naturally wrote a sequel, and found a publisher. The Estate of Arthur Conan Doyle (1859-1930) sued and tried to prevent the book’s publication, or alternatively, to get a licensing fee (a seemingly small $5,000 fee). It turns out that while most of the Sherlock Holmes stories are in the public domain (having been published from 1887 to 1927), 10 stories remain under copyright protection until 2018-2022. And don’t forget the successful movies (Warner Brothers’ Sherlock Holmes (2009) and Sherlock Holmes: A Game of Shadows (2011)) and TV shows in the U.S. (CBS’ “Elementary,” 2012-present) and the U.K. (the BBC’s “Sherlock,” 2010-present) that derive from Sir Arthur’s ingenious characters or plots. The Court found that since all but 10 of the original stories are in the public domain, a new derivative work (like an anthology or TV show) can be done without paying a licensing fee or infringing the Sherlock Holmes copyright, as long as the new derivative work uses only public domain material, not material that would “round” out the characters from the later (still copyrighted) stories. Judge Posner reminds us of character development in Shakespeare’s plays (a la Sir John Falstaff and Henry) and Star Wars Episodes I-VI, though the same analogy also works for British novelist Agatha Christie’s Hercules Poirot oeuvre, the Lord of the Rings, the Chronicles of Narnia, Tom Clancy’s Jack Ryan character, or any author who develops his or her characters over time across works.

Note that Judge Posner’s opinion only covers the American copyright in the Sherlock Holmes oeuvre, not the British copyright. American copyright law terms are governed by the Copyright Extension Act (1998), as read through the lens of the Digital Millennium Copyright Act (1998), and is copyright protection is triggered by listing “(c), 201_” and the author’s name, often along with “all rights reserved.” To enforce an American copyright, it must be registered with the Library of Congress, even though copyright exists in any creative expression set down in tangible form at the moment of creation. British copyright law, by contrast, is governed by the Copyright, Designs and Patents Act of 1988, and is triggered by listing “the right of [the author] to be identified as the author of this work has been asserted by him/her in accordance with the Copyright, Designs and Patents Act 1988.”

If my law firm, Johnson Law KC LLC, can serve you, your company, or your nonprofit organization with copyright needs, please call (913.707.9220) or email me (steve@johnsonlawkc.com) to schedule a convenient free consultation.

(c) 2014, Stephen M. Johnson, Esq.

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