Character of Sherlock is in public domain.
Facts of Klinger v. Conan Doyale Estate:
Arthur Conan Doyle published his first Sherlock Holmes story in 1887 and his last in 1927. There were 56 stories in all, plus 4 novels. The final 10 stories were published between 1923 and 1927. As a result of statutory extensions of copyright protection culminating in the 1998 Copyright Term Extension Act, the American copyrights on those final stories (copyrights owned by Doyle’s estate, the appellant) will not expire until 95 years after the date of original publication—between 2018 to 2022, depending on the original publication date of each story. The copyrights on the other 46 stories and the 4 novels, all being works published before 1923, have expired.
Once the copyright on a work expires, the work becomes a part of the public domain and can be copied and sold without need to obtain a license from the holder of the expired copyright. Leslie Klinger, co-edited an anthology called A Study in Sherlock: Stories Inspired by the Sherlock Holmes Canon (2011)—“canon” referring to the 60 stories and novels written by Arthur Conan Doyle. Klinger’s anthology consisted of stories written by modern authors but inspired by, and in most instances depicting, the genius detective Sherlock Holmes and his awed sidekick Dr. Watson.
While Klinger did not think that it required a licence from the estate of Sir Arthur Connon Doyle, (Doyale Estate) his publishers, Random House bowed to the demand of estate and paid Rs. 5000/- and obtained a licence before publishing the Klinger’s work.
Klinger and his co-editor decided to create a sequel to A Study in Sherlock, to be called In the Company of Sherlock Holmes. They entered into negotiations with Pegasus Books for the publication of the book and W.W. Norton & Company for distribution of it to booksellers. Doyale Estate again insisted that they must obtain a licence to publish the work, which was resisted by Klinger. Doyal Estate had clearly stated it’s intention to protest with the retailers like Amazon and Barnes & Noble to ensure that the publication is not put up for sale by them. Klinger responded to this latent threat by way of a suit for declaration that there was no copyright in favour of Doyale Estate. District Judge granted the motion.
Issue before the Circuit Court of Appeal:
whether copyright protection of a fictional character can be extended beyond the expiration of the copyright on it because the author altered the character in a subsequent work. In such a case, the Doyle estate contends, the
original character cannot lawfully be copied without a license from the writer until the copyright on the later work, in which that character appears in a different form, expires.
Creativity and copyright:
Most copyrighted works include some, and often a great deal of, public domain material—words, phrases, data, entire sentences, quoted material, and so forth. The smaller the public domain, the more work is involved in the creation of a new work. The defendant’s proposed rule would also encourage authors to continue to write stories involving old characters in an effort to prolong copyright protection, rather than encouraging them to create stories with entirely new characters. The effect would be to discourage creativity.
Copyright in characters:
From the outset of the series of Arthur Conan Doyle stories and novels that began in 1887 Holmes and Watson were distinctive characters and therefore copyrightable. They were “in-complete” only in the sense that Doyle might want to (and later did) add additional features to their portrayals. The resulting somewhat altered characters were derivative works, the additional features of which that were added in the ten late stories being protected by the copyrights on those stories. The alterations do not revive the expired copyrights on the original characters.
Perpetual copyright in characters:
There is no copyright infringement of a story or character that is not under copyright. Anyway it appears that the Doyle estate is concerned not with specific alterations in the depiction of Holmes or Watson in Holmes-Watson stories written by authors other than Arthur Conan Doyle, but with any such story that is published without payment to the estate of a licensing fee.
With the net effect on creativity of extending the copyright protection of literary characters to the extraordinarylengths urged by the estate so uncertain, and no grounds suggested 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 (perpetual copyright would violate the copyright clause of the Constitution, Art. I, § 8, cl. 8, which authorizes copyright protection only for “limited Times”) 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.
[Source: Klinger v. Conan Doyle Estate (7th Cir.)]