The Conan Doyle Estate Loses Its “Quixotic” Quest to Control Sherlock Holmes

Sherlock Holmes

Arthur Conan Doyle died 84 years ago, leaving behind the fictional Sherlock Holmes and real-life heirs that have demanded a toll from those who pay homage to Conan Doyle’s work. Leslie S. Klinger, the editor of an anthology of Sherlock Holmes–inspired modern stories, finally had enough of it. After receiving a threat from the estate, he sued in federal court for the right to copy the characters in the portion of Conan Doyle’s stories and novels that are now in the public domain.*

Back in December, the U.S. District Court for the Northern District of Illinois granted Klinger summary judgment, allowing him to use the characters contained in the stories published before 1923. The Estate appealed to the United States Court of Appeals for the 7th Circuit, which issued its decision on June 16, 2014.

The issue before the Court was whether Klinger may copy the characters of Sherlock Holmes and Dr. Watson based on the 46 stories and 4 novels that are now in the public domain, even though Conan Doyle had tweaked those characters in 10 stories published after 1923, stories that remain under copyright until 2022 (depending on the story).

In an opinion by Judge Richard Posner, the Court affirmed the District Court’s decision. Klinger won. So, he may copy Holmes and Watson when the basis for those characters comes from the works in the public domain.

Once a story loses its copyright protection and falls into the public domain (which, in the United States, happens many decades after the author’s death), the elements of the story, including the characters, are available for future authors to insert into new stories. As for the 10 stories published after 1923, Posner explains that they are “derivative from the earlier stories, so only original elements added in the later stories remain protected [under copyright law].”

I’m relieved to see the Court put a stop to an estate’s aggressive efforts to control the culture related to their ancestor’s work. Copyright protection encourages an author’s creativity by giving them a stake in the long-term success of their efforts. However, excessive copyright protection stifles future authors from borrowing from older works to create new ones, even long after the original author has died.

As Posner concludes:

With the net effect on creativity of extending the copyright protection of literary characters to the extraordinary lengths urged by the estate so uncertain, and no legal grounds for extending copyright protection beyond the limits fixed by Congress, the estate’s appeal borders on the quixotic. The spectre of perpetual, or at least nearly perpetual, copyright [] looms, once one realizes that the Doyle estate is seeking 135 years (1887-2022) of copyright protection for the character of Sherlock Holmes as depicted in the first Sherlock Holmes story. [emphasis added]

Imagine 135 years of copyright protection! The “spectre of nearly perpetual” copyright is very scary considering how litigious these literary estates can be (Remember Faulkner?).

In this case, the Conan Doyle Estate did not initiate the litigation, but their behavior is reprehensible. From the way I read the facts, Klinger had no choice but to sue them for a declaratory judgment because the Estate held Sherlock Holmes for ransom. The Estate demanded a fee from Klinger, and sent this threat to his publisher:

If you proceed [] to bring out Study in Sherlock II [] unlicensed, do not expect to see it offered for sale by Amazon, Barnes & Noble, and similar retailers. We work with those compan[ies] routinely to weed out unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate to do so with your book as well.

Then, after this threat, the Estate failed to defend itself when Klinger filed for the declaratory judgment in federal District Court. It didn’t even answer the complaint. It only bothered to respond to Klinger’s summary judgment motion, ultimately having the audacity to make the same weak legal arguments in its appeal to the 7th Circuit.

Quite frankly, not only did the Estate try to thwart the creativity of authors inspired by Sherlock Holmes, but they also wasted judicial resources and taxpayer money with this “quixotic” appeal. I’m so glad that 2022 is right around the corner— by then, I hope that Conan Doyle’s heirs will find something better to do than try to collect tolls from their long-dead ancestor’s fans.

*Klinger’s previous publisher had paid a $5,000 fee to the Estate for the first anthology. This case stems from the sequel.

**The Court filings are available at Free Sherlock!  Posner’s decision (June 16, 2014) is a fun one to read, and I also recommend listening to the oral argument.

[Update July 18, 2014: U.S. Supreme Court refused to hear the Conan Doyle Estate's "emergency petition"]

About A.M.B.

I am an attorney and the mother of three.
This entry was posted in Books, Law and tagged , , , , , . Bookmark the permalink.

20 Responses to The Conan Doyle Estate Loses Its “Quixotic” Quest to Control Sherlock Holmes

  1. Roy McCarthy says:

    Hurray, good decision. AMB I’m interested in a snippet of one of your answers below ‘…there are many plaintiffs who don’t get their day in court…’ Could you explain why?

    • A.M.B. says:

      Hi Roy! The American legal system has a number of barriers to entry into the civil court system, including forced arbitration agreements, insurmountable limitations on class actions, and the overall cost and duration of litigation. It’s a war of attrition, and the party with more money has many tools to dissuade the other side from continuing. Few meritorious claims will ever see a jury. It isn’t easy to be a plaintiff.

  2. sandvick says:

    Reblogged this on DailyHistory.org and commented:
    As an ardent supporter of the public domain, it is outstanding news that 7th Circuit Court of Appeals affirmed the US District Court’s summary judgment motion finding that Sherlock Holmes (for the most part) is now in the public domain. What does that mean? You can now create stories, movies, books, songs, plays based on the Sherlock Holmes stories and novels that are now in the public domain without paying the Arthur Conan Doyle estate. The greatest fictional detective is now free.

    • A.M.B. says:

      Thanks for reblogging it! The Posner decision is a fun one to read. Technically, the 7th Circuit decision isn’t “the law” everywhere, but it makes it much harder for the Conan Doyle Estate to hold Sherlock Holmes hostage now. I can’t wait for 2022!

  3. I agree with you on this one. What a waste of everyone’s time to drag this through court! The estate can’t expect to cash in on these stories forever. C’mon 2022!

  4. First, let me say I love the idea of your blog. Legal issues are always interesting (and there are many ways in which they intersect with the literary world.

    Second, I always assumed that Sherlock Holmes was so old that he already was public domain! Everywhere you look, there’s Sherlock Holmes movies, TV shows, etc. I just assumed he belonged to the world.

    I suppose I could see both sides. On one hand, maybe he should belong to everyone, having been around so long. On the other hand, maybe the family doesn’t want to see stupid things happening to Sherlock (which will probably happen if they lose their right to have a say so in what happens with Sherlock) – Sherlock in Space! Sherlock Goes to Hawaii! Sherlock vs. Godzilla!

    Anyway, great blog, I’ll be reading – I’m new to book blogging, so feel free to stop by and check it out:

    http://www.bookshelfbattle.com

    • A.M.B. says:

      Thanks! I always thought that Sherlock “belonged to the world,” too (that’s a nice way of putting it). There are many sides to this issue. I could understand that the Conan Doyle family might not want Sherlock’s image to change, but the way they clamped down on “unapproved” uses made it so that ONLY versions of Sherlock that were the most different from what Conan Doyle did 120+ years ago would be okay. That’s inviting “crazy” versions of Sherlock! My opinion is that their “quixotic” quest was probably really about making money off of their ancestor’s work.

      Thanks for stopping by!

  5. I too was thinking of the TV version of Sherlock Holmes, in fact a few different shows, same character. I think the world is just too litigious. Are you following the Redskins cancellation of trademark? What a can of worms this will create.

    • A.M.B. says:

      Hi Donna! Sadly, I think there are many plaintiffs who never get their day in court, while it seems like far too many frivolous cases go forward. The Faulkner lawsuits last year were particularly frivolous, in my opinion. Here, Conan Doyle didn’t file the lawsuit, but what did the estate expect to happen when they threatened the editor? Then they had the audacity to prolong the litigation by appealing the case when their arguments were laughably weak. That’s the type of litigious nature that bothers me.

      I have been following the Redskins trademark issue a little bit. I think the decision is largely symbolic, but it sends a powerful message.

      Have a great weekend!

  6. Lindsey says:

    There seems to be so much contention over this issue. I believe that creators should be reimbursed for their work and I have to imagine that the families feel a sort of personal connection to the characters created by their parent or grandparent, but things enter the public domain eventually. Once that happens, it’s time for someone else to get a turn!

    • A.M.B. says:

      Yeah, copyright and trademark laws are very controversial. Highly successful authors often want more protection (for their heirs to benefit), but it comes at a price for everyone else because it halts future creativity. Borrowing material is part of the creative process. I completely agree with you that once a book enters into the public domain, it’s time for modern authors to get a turn at taking the old and turning it into something new.

  7. I had heard about this when the decision first came out. I was glad to hear it too.

    • A.M.B. says:

      I really enjoyed reading Judge Posner’s decision, and I even laughed a little as I listened to the oral argument (which is linked on the Free Sherlock website). I don’t know what the estate was thinking!

      Have a great weekend!

  8. Yet Hollywood has made a small fortune recreating Sherlock Holmes and Watson in films. Why could they get away with it but not Klinger? Should we assume much money changed hands?

  9. Fascinating! This could be a movie in and of itself!

    >

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