Copyright war for ‘Sherlock Holmes’!

For a person, irrespective of whether he is related or non-related to law, ‘Sherlock Homes’ is not an unfamiliar character. Being conceived by Sir Arthur Conan Doyle and first appearing in the year 1887 (A Study in Scarlet), the characters of Sherlock Holmes and his friend, Dr. John Watson, have made a distinct mark in novels, short stories, cinema, TV series etc.

(Image Source: BBC America)

Recently, a U.S. court, while delivering a ‘declaratory judgment’, has held that both the characters, Sherlock Holmes and Dr. John Watson, are among those elements of Doyle’s works which no longer enjoy copyright protection in United States. The action was brought by Leslie S. Klinger against Conan Doyle Estate Ltd. Klinger had claimed that ‘various characters, character traits and other story elements from Sir Arthur Conan Doyle’s Sherlock Holmes stories are free for the public to copy’. A large number of Doyle’s works (published prior to 1923), which consists of four novels and forty-six short stories out of a total of fifty-six, are now in public domain and no longer enjoy copyright protection. However, some of his works, i.e., ten short stories or ‘Ten Stories’ (published post-1923), still enjoy copyright protection.

According to Klinger, since Sherlock Holmes Story Elements originated from the works which are already in public domain, no permission was required to use them. Klinger further contended that additions in ‘Ten Stories’ are mere events and not the characteristic. On the other hand, it was contended by Doyle Estate that Sherlock Holmes and Dr. Watson were continually developed throughout the entire Doyle’s works including the copyrighted ‘Ten Stories’; hence, the copyright protection enjoyed by the ‘Ten Stories’ should be extended to both the characters

Before arriving at the decision, the court referred to an important legal principle, i.e., ‘where an author has used the same character in a series of works, some of which are in public domain, the public is free to copy story elements from the public domain work’. Having placed reliance on judgments in Silverman v. CBS Inc. and Pannonia Farms, Inc. v. USA Cable, Judge Ruben Castillo was of the opinion that characters and story elements first articulated in public domain works are free for public use but further delineation of the characters and story elements in protected works retain their protected status.

So far as story elements newly introduced in ‘Ten Stories’ are concerned, the judge was of the opinion that they enjoy copyright protection. These new story elements include Dr. Watson’s second wife, Dr. Watson’s background as an athlete, Sherlock Holmes’ retirement from his detective agency etc. The judge rejected the argument of Klinger that these elements are events rather than characteristic. Opining that courts do not distinguish between elements that complete the character and that do not, it was held that “increments of expression” warrants copyright protection. Since there were “increments of expression” in Ten Stories, copyright protection can be provided. At the same time, the judge rejected the contention of Doyle Estate that none of Doyle’s work is a derivate of another work. Referring to the opinion of Professor Nimmer, it was stated that after a character has been introduced in a work, subsequent works in a series that feature the same character are derivative works. Since “Ten Stories’ fall under this description and are therefore derivative works, it was held that ‘increment of expression” test will be applicable to story elements newly introduced by them.

Since ‘increments of expression’ include strorylines, dialogs, characters, character traits etc. (see: Pannonia Farms), these newly introduced elements in ‘Ten Stories’ will continue to enjoy copyright protection. Though Klinger succeeded in his claim that pre-1923 elements (including Sherlock Holmes and John Watson) are in public domain, he failed to convince the court that post-1923 also fall in public domain.

Unlike United Kingdom, copyright of Sherlock Holmes stories has already been expired, these newly introduced elements of ‘Ten Stories’ will continue to enjoy copyright protection in United States.