Arthur Conan Doyle Estate Sued To Show That Sherlock Holmes Is Public Domain

from the go-get-'em dept

Fri, Feb 15th 2013 6:25pm — Mike Masnick

A little over three years ago, we had a discussion concerning whether or not Sherlock Holmes was in the public domain. By our understanding of the law, the character absolutely is in the public domain. There is one remaining book -- The Case-Book of Sherlock Holmes -- which contains a few stories that are still covered by copyright, but the characters and most of the written works are in the public domain. However, the legal representatives of the Sir Arthur Conan Doyle Estate use the fact that one book is still held under copyright to argue that the character is still protected until (at least) 2023. Of course, as with things like Happy Birthday, even if it should be in the public domain, if there's some corporate entity insisting that it's covered by copyright, you'd have to go to court to prove otherwise. And most people don't want to bother.

Thankfully, that just changed when it comes to Sherlock Holmes. Sherlock Holmes scholar, Leslie S. Klinger, was working on a book (with Laurie R. King) called In the Company of Sherlock Holmes, detailing "major mystery/sci-fi/fantasy authors inspired by the Holmes tales." However, the Conan Doyle Estate contacted their publisher, Pegasus Books, demanding a license fee, and saying if they weren't paid, they'd make sure that no major distributors would sell the book. Specifically, the estate directly threatened that:

If you proceed instead 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 company's routinely to weed out unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate to do so with your book as well.

Like too many publishers, Pegasus freaked out and refused to publish the book at all, so Klinger has taken it upon himself to file for declaratory judgment. You can see the full filing posted here (and embedded it below).

The lawsuit points out that Sherlock Holmes characters have long been in the public domain, and even that remaining book of stories includes two that are clearly in the public domain, as they were published prior to 1923. But, most importantly "none of the Sherlock Holmes Story Elements first appeared in any of the stories that were collected in The Case-Book of Sherlock Holmes." In other words, the entirety of copyright protected elements in the character were published outside of that one book, and are now in the public domain.

The lawsuit also notes that Klinger and King's publisher on an earlier book, A Study in Sherlock, did, in fact, pay a license to the estate, but they did not concede any of the legal arguments. When the estate threatened Klinger, he correctly explained that no license was needed, but he's still dealing with the fallout from his publisher getting cold feet. Thus, he's asking the court to state, definitively, that the character is in the public domain. Kudos to Klinger for taking this on. We need more people willing to stand up for the public domain. Also, jeers to Pegasus for not being the one to take this on and for freaking out over the bogus threat.

Klinger v Conan Doyle Estate (PDF)Klinger v Conan Doyle Estate (Text)

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Filed Under: arthur conan doyle, copyright, leslie klinger, public domain, sherlock holmes
Companies: conan doyle estate, perseus books

46 Comments

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Anonymous Coward, 15 Feb 2013 @ 6:51pm

Why is the estate bothering considering that Doyle eventually killed off Holmes, then only brought him back after massive public outcry to a writing standard that has never had the same level as prior to Holmes' death?
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- Travicane, 15 Feb 2013 @ 7:22pm
  
  Re:
  Because the whole "Holmes" meme has been popular in recent years.
  These "living dead" parasites want to suck as much unearned money as possible from modern day creators. Even if it involves killing off those who try to reject the parasite.
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Anonymous Coward, 15 Feb 2013 @ 7:17pm

Surprise Witness
Why not just contact the spirit of Aurthur Conan Doyle and see how he feels?
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- Anonymous Coward, 16 Feb 2013 @ 12:05am
  
  Re: Surprise Witness
  Because he;d feel annoyed at the use of mystical theories to try and ascertain his wishes.
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  - Anonymous Coward, 16 Feb 2013 @ 9:41pm
    
    Re: Re: Surprise Witness
    You don't know a whole lot, do you?
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- PopeRatzo (profile), 16 Feb 2013 @ 5:28am
  
  Re: Surprise Witness
  I just did that, and Doyle gave his tacit consent to making it public domain.
  
  He's also very disappointed in his heirs.
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- Anonymous Coward, 16 Feb 2013 @ 7:07am
  
  Re: Surprise Witness
  Why bother? Copyright lasts life + forever - a day; of course he's benefiting!
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- Ninja (profile), 18 Feb 2013 @ 3:51am
  
  Re: Surprise Witness
  That's what people don't understand. We need copyrights for dead artists because when we need to contact them we need to hire expensive shamans (!?) to contact the spiritual world and hear from the artists themselves what are their wishes.
  
  And if you think about it, I agree with Chris Dodd. We should think of the poor shamans that are employed by Hollywood!
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Carlos Sol�s a.k.a. ArkBlitz (in the rest of the I (profile), 15 Feb 2013 @ 7:45pm

This lawsuit is actually wrong
If we take into account that there is at least one country (Mexico) where the copyright of the Sherlock Holmes' series as a whole is still standing until at least 2031 (100 years after the death of the author, Sir Arthur Conan Doyle), then the defense of Doyle's estate can allege that Klinger and King are infringing in at least one country, which will grant them 8 more years than the estate claims!
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- Anonymous Coward, 16 Feb 2013 @ 8:47am
  
  Re: This lawsuit is actually wrong
  "...one country (Mexico) where the copyright of the Sherlock Holmes' series as a whole is still standing until at least 2031..."
  Which is why you don't see any Sherlock Holmes projects published/filmed in Mexico.
  The key is where the project is created/officially-distributed.
  If it's created and sold in a country where the source material is PD, then the project can't be sued (at least with any hope of success).
  (Secondary sales in countries where the copyright for th source material still holds aren't the responsiblity of the project creator.)
  Of course, a company can be sued as a form of harassment/blackmail, and some companies will pay a small fee to avoid long legal proceedings.
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- nashedron (profile), 19 Feb 2013 @ 4:48am
  
  Re: This lawsuit is actually wrong
  The complaint for declaratory judgment may be wrong for some reason--we'll know once the court decides--but it isn't wrong for the reason you suggest.
  
  If you look at the document, it's clear that it's seeking a declaration regarding copyright within the United States only. (It could hardly do otherwise, since the court has no jurisdiction in Mexico or any other non-U.S. territory.)
  
  If the term of copyright is different in Mexico, that's certainly interesting, but it doesn't affect this case.
  
  Nas
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Andrew F (profile), 15 Feb 2013 @ 7:46pm

(1) This is exactly why characters alone should be outside the scope of copyright. Imagine if someone wrote a sequel to Harry Potter way off when books 1-6 are in the public domain but 7 is not. The author would be allowed to use Harry but couldn't make any reference to Harry's defeat of Voldemort at the end.

(2) To the extent that authors want to create an official canon and prevent knock off sequels that confuse readers, trademark law is sufficient to do this.

(3) Correct me if I'm wrong, but isn't this book non-fiction? There's no infringement because the Holmes character is not actually being used as a character.

(4) Even if this non-fiction book would otherwise infringe, how is this not fair use?
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- Dude, 15 Feb 2013 @ 8:41pm
  
  Re:
  "(1) This is exactly why characters alone should be outside the scope of copyright. Imagine if someone wrote a sequel to Harry Potter way off when books 1-6 are in the public domain but 7 is not. The author would be allowed to use Harry but couldn't make any reference to Harry's defeat of Voldemort at the end."
  
  Well this scenario won't happen, since all 7 books will become public domain at the same time, 70 years after JK Rowling dies (at least in the UK and US, as well as a good number of other countries). It's only the archaic old US copyright laws that created terms of 95 years from publication that are causing the weird scenario with Sherlock Holmes, and other works published 1923-1977.
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  - Richard (profile), 16 Feb 2013 @ 2:51am
    
    Re: Re:
    Indeed - In the UK ALL of Conan Doyle's work has been public domain since 2001.
    
    Simply publish in Europe, Australia etc and ignore the US.
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- redwall_hp (profile), 17 Feb 2013 @ 1:47pm
  
  Re:
  A Study in Sherlock is a collection of short stories featuring alternate takes on Sherlock Holmes, or inspired by the character. It's one of those books where the editor gets a bunch of published authors together and says "hey, I want to compile a book of short stories about 'blah' Want to contribute one?"
  
  Since the post refers to it as Study in Sherlock II once, and it's the same author, I assume it's more of the same.
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Spaceman Spiff (profile), 15 Feb 2013 @ 7:53pm

Donations?
Where can we donate to his legal fund? I'd be happy to cough up $50USD or so to help... :-)
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Anonymous Coward, 15 Feb 2013 @ 7:54pm

Puss in Publishing
Between the losers at Pegasus and the Texas at Austin & the Poynter Institute weenies, there is some serious wussification of �The Press�.

The people that work at these so called �4th Estate� turncoat operations should turn in their �pens� to Edward Bulwer-Lytton and retire.
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That Anonymous Coward (profile), 15 Feb 2013 @ 7:57pm

You'd think people representing the estate of Arthur Conan Doyle, who brought the world Sherlock Holmes, wouldn't need such an obvious clue to solve this.
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- G Thompson (profile), 15 Feb 2013 @ 9:29pm
  
  Re:
  Indubitably!
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- Trails (profile), 15 Feb 2013 @ 9:35pm
  
  Re:
  You'd think people representing the estate of Arthur Conan Doyle, who brought the world Sherlock Holmes, wouldn't need such an obvious clue to solve this.
  
  I agree it seems unlikely, Watson, but once you've ruled out the impossible, whatever remains, however improbable, must be the truth.
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peter, 15 Feb 2013 @ 11:11pm

Copyright........forever
So under this legal theory, what is to stop an Author (or his estate) producing a new short story every 20 years and resetting the Copyright clock again and again? That is the logical outcome if this legal argument prevails isn't it?
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peter, 15 Feb 2013 @ 11:11pm

Copyright........forever
So under this legal theory, what is to stop an Author (or his estate) producing a new short story every 20 years and resetting the Copyright clock again and again? That is the logical outcome if this legal argument prevails isn't it?
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- Richard (profile), 16 Feb 2013 @ 2:53am
  
  Re: Copyright........forever
  I see you practice what you preach - although your repetition rate is much higher than required!
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- Ed C., 16 Feb 2013 @ 10:23am
  
  Re: Copyright........forever
  Which is why this case must succeed. Right now, older works are often stuck in legal limbo because copyright holders use the quagmire that the law has become to make claims over works that otherwise should be in the public domain. These kinds of cases rarely come up, as few are willing to take on these estates in court, and those that do usually end up in settlements so the estates can avoid setting legal precedents.
  
  If the estate wins, then copyright holders can effectively keep characters under copyright forever by simply creating a new work ever few decades.
  
  If Klinger wins, then any character in public domain works also becomes public domain, even when the character appears in other work that are not.
  
  If this ends in settlement, nothing will change.
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ricebowl (profile), 16 Feb 2013 @ 4:17am

An interesting discrepancy from Doyle's own interests.

One example of Doyle's attitude about Holmes can be seen in his correspondence with the American stage actor William Gillette, who wrote an immensely popular play about Holmes and asked permission to have Holmes get married in the drama.

"Doyle sent him a telegram back that said: 'You may marry him or murder him or do whatever you like with him,'" said Stashower.

(Reference: http://www.pbs.org/wgbh/mystery/essays/doylevholmes.html)

Now, Stashower may have lied, or otherwise misrepresented Doyle's correspondence, but it seems clear that he was still willing to have others develop, or build on, the character(s).
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Anonymous Coward, 16 Feb 2013 @ 7:45am

Gender confusion?
"Leslie S. Klinger" ... "Klinger has taken it upon himself to file for declaratory judgment."

Something's inconsistent here.
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- Anonymous Coward, 16 Feb 2013 @ 8:06am
  
  Re: Gender confusion?
  Leslie is a boy's name too.
  http://en.wikipedia.org/wiki/Leslie_(name)
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- Anonymous Coward, 17 Feb 2013 @ 7:49am
  
  Re: Gender confusion?
  Seriously?
  [ link to this | view in chronology ]
- Sheogorath (profile), 18 Feb 2013 @ 8:45pm
  
  Re: Gender confusion?
  What's inconsistent? Leslie is the correct spelling for a male with that name. I'd be more worried if the person was a man and Techdirt was calling him Lesley.
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drew Roberts, 16 Feb 2013 @ 7:53am

Reasoning about copyright.
More and more lately, I am seeing that you cannot really reason about copyright from any thing like "first principles" and get anywhere near the answer that a person versed in copyright law will get given the same set up.

Copyright is a hodge podge of who knows what seemingly produced to satisfy the wishes of those with enough money or influence to get that they wanted pushed through at the time.

Copyright Questions:
http://zotzbro.blogspot.com/2010/12/copyright-questions.html

all the best,

drew
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AB, 16 Feb 2013 @ 7:53am

It's a good thing we have such lengthy copyrights or no one would ever write _any_ books! I mean, who would want to write about some random public domain character? When's the last time you saw a story based on Ulysses, or Merlin, or Cinderella?
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- Anonymous Coward, 16 Feb 2013 @ 9:08am
  
  Re:
  "When's the last time you saw a story based on Ulysses, or Merlin, or Cinderella?"
  
  Merlin tv series currently running on BBC and SyFy.
  Plus numerous movies/tv series/novels/graphic novels about King Arthur, all of which feature Merlin.
  Cinderella...(not including Disney-based material)
  "The Ballet" (2010)
  "Ice Show" (2008)
  Once Upon a Time TV series (2011-present) incorporates Cinderalla with other fairy tales
  "Into the Woods" (incorporates original Fairy Tale) (international tour)
  Ella Enchanted (2004)
  Shrek movie series. Cinderella is one of many fairy tale characters including Merlin!
  Fables ongoing comic book series and spin-off mini-series
  
  Ulysses:
  Ulysses 31 anime updating character to 31st century.
  and, of course, any adaptation/redo of Homer's Illad and/or Odyssey.
  Numerous 1960s "peplum" films.
  Both Hercules the Legendary Journeys and Xena: Warror Princess
  
  Any questions?
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  - Ed C., 16 Feb 2013 @ 9:58am
    
    Re: Re:
    I took AB's comment as sarcasm, but it can be hard to tell sometimes.
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  - drew (profile), 16 Feb 2013 @ 10:10am
    
    Re: Re:
    successful troll is successful...
    
    Not that it was really trolling, just a bit of sarcasm.
    
    6/10 must try harder.
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  - AB, 16 Feb 2013 @ 9:13pm
    
    Re: Re:
    I'm sorry. I expected the pundits to get upset with my sarcasm, I certainly didn't think that statement would be taken as serious. I still have trouble accepting that people actually do think like that. Particularly people in positions of power. Scary stuff that.
    
    Anyway, I didn't mean to get anyone's blood pressure up.
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    - Ed C., 16 Feb 2013 @ 10:45pm
      
      Re: Re: Re:
      Sadly, there are people who think this way--that "true" creations are snowflakes, unique from everything that came before and with nothing taken from anything else. Of course, when you do call them out for plagiarism, they claim that's totally acceptable for "creators" or "professionals", not the commoners--those who don't have an army of lawyers from their publisher who are paid to cover their asses.
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etrimby (profile), 16 Feb 2013 @ 1:03pm

So are Warner Brothers and CBS paying licenses fees for their current Sherlock Holmes projects?
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Zem, 16 Feb 2013 @ 1:44pm

Copyright, it's eternal my dear Watson
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Kate, 16 Feb 2013 @ 7:00pm

Shouldn't that say "companies"? If you're going to issue a legal threat, you should have a lawyer who knows basic grammar.
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Matt, 17 Feb 2013 @ 12:31am

Secondary Boycott.
If you proceed instead 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 company's routinely to weed out unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate to do so with your book as well.

The most insidious of these comments is this threat/promise of as secondary boycott. Chilling to see business has descended so low.
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- AB, 17 Feb 2013 @ 10:56am
  
  Re: Secondary Boycott.
  The worst thing is that thanks to unbalanced DMCA regulations they CAN block the sale, even though doing so is 'technically' illegal.
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Anonymous Coward, 17 Feb 2013 @ 2:02am

BOLLOCKS
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Anonymous Coward, 18 Feb 2013 @ 5:00am

What is the point of copyright lasting after an authors death? I wish that our copyright law was the 1790 copyright law. It was much more reasonable and limited. Copyright law restrict the creativity of this generation. A lot of ideas have alreadly been used. There are so many things copyrighted. I wish people would try and get them less strict instead of letting big corporations and rich people decide copyright laws. Copyright law can make criminals out of otherwise law abiding citizens.Copyright law criminalizes acts that are not immoral in themself. I thought Sherlock Holmes was so old it was public domain. I think people should be allowed to write stories using characters from books and movies. Derivative works should not be an exclusive right to authors.
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- Anonymous Coward, 18 Feb 2013 @ 7:47am
  
  Re:
  if it didn't last until after death the publishers would kill the author the moment his transcripts arrive. It really is for the protection of the creators.
  [ link to this | view in chronology ]
  - Anonymous Coward, 18 Feb 2013 @ 11:16am
    
    Re: Re:
    I started to object to this. Then I remembered about the goose that laid the golden egg and realized that this is all too plausible.
    [ link to this | view in chronology ]
- Anonymous Coward, 18 Feb 2013 @ 12:58pm
  
  Re:
  Well some people make the not unreasonable argument that an author has a right to be able to leave something to his descendants. If he'd been a landlord, he'd leave the buildings he owns and the descendants would make money from them, by continuing to let them or selling them. If a farmer, likewise.
  It is sort of fair, until you remember that while spouses might, descendants don't get to keep getting a policeman's pension, descendants of surgeons don't continue to get paid for their parents or grandparents surgery. Perhaps instead of trying to explain why authors shouldn't be able to have a heritable estate of their ip, we should start wondering why actual property is treated differently and whether it should stay that way or not.
  [ link to this | view in chronology ]