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"]