Sherlock Holmes and the Case of the public domain

The century-plus-old literary character,already featuring in popular shows and films,is now freed of US copyright law. All about him before 1923 can now be used without a licence.

Published: January 5, 2014 12:25:37 am

In the more than 125 years since he first appeared,Sherlock Holmes has popped up everywhere from fan fiction set in outer space to adaptations like CBS’s Elementary,set in contemporary New York. But now,following a legal ruling,the deerstalker-wearing detective is headed to another destination: the public domain.

A federal judge has issued a declarative judgment stating that Holmes,Watson,221B Baker Street,the dastardly Professor Moriarty and other elements included in the 50 Holmes works that Arthur Conan Doyle published before January 1,1923,are no longer covered by US copyright law,and can therefore be freely used by others without paying any licensing fee to the writer’s estate.

The ruling came in response to a civil complaint filed in February by Leslie S Klinger,editor of the three-volume,nearly 3,000-page The New Annotated Sherlock Holmes and a number of other Holmes-related books. The complaint stemmed from In the Company of Sherlock Holmes,a collection of new Holmes stories written by different authors and edited by Klinger and Laurie R King,herself the author of a mystery series featuring Mary Russell,Holmes’s wife.

Klinger and King had paid a $5,000 licensing fee for a previous Holmes-inspired collection. But in the complaint,Klinger said the publisher,Pegasus Books,had declined to go forward after receiving a letter from the Conan Doyle Estate Ltd,a business entity in Britain,suggesting that the estate would prevent the new book from being sold by Amazon,Barnes & Noble and “similar retailers” unless it received another fee.

Chief Judge Rubén Castillo of US District Court of the Northern District of Illinois,stated that elements introduced in Holmes stories published after 1923 — such as the fact that Watson played rugby for Blackheath,or had a second wife — remain under copyright in the United States. (All of the Holmes stories are in the public domain in Britain.)

But the judge rejected what he called the estate’s “novel legal argument” that the characters remain under copyright because,it claimed,they were not truly completed until Conan Doyle published his last Holmes story in 1927.

“Klinger and the public may use the pre-1923 story elements without seeking a licence,” the judge wrote.

The decision comes at a moment when Holmes is a newly lucrative commercial property,thanks to Elementary,the BBC series Sherlock and the Warner Bros movie franchise; all three have entered into licensing agreements with the estate.

BBC declined to comment on the effect of the decision on its agreement for Sherlock,whose third season has begun. Warner Bros had no comment. A CBS spokesman said,“The decision will not affect production or distribution of Elementary.”

Benjamin W Allison,a lawyer for the Conan Doyle Estate,said it was exploring an appeal but asserted that the ruling did not imperil any existing licensing agreements or the estate’s separate claims under trademark law.

Allison also reiterated the estate’s argument that the “highly delineated” Holmes and Watson characters depend on elements introduced in the post-1923 stories,which remain protected,and which he said went beyond simple matters like Watson’s athletic career.

“Those stories are set at a variety of points in Sherlock’s fictional life,not just the end of his life,” he said.

Klinger said that he planned to go ahead with In the Company of Sherlock Holmes,which he said carefully avoided any post-1923 elements. And he praised the ruling for opening the way for other creators,many of whom had previously paid fees to the estate but had rallied to Klinger’s cause under the Twitter hashtag #FreeSherlock.

“Sherlock Holmes belongs to the world,and this ruling clearly establishes that,” he said. “People want to celebrate Holmes and Watson,and now they can do that without fear.”

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