Can the editor of a collection of stories based on the Sherlock Holmes characters and written by modern authors publish and distribute the collection without infringing the copyrights on the 10 Sherlock Holmes stories that are still protected by copyright? Yes, ruled the Seventh Circuit Court of Appeals, as long as the collection is based on the 56 stories and 4 novels that are in the public domain and not on the 10 stories that are still protected by copyright. Arthur Conan Doyle’s estate can’t leverage the copyrights of the 10 protected stories to claim copyright protection for the other 56 stories and 4 novels.
Arthur Conan Doyle wrote the Sherlock Holmes stories between 1887 and 1927. The Copyright Act of 1976 protects works that were created from 1923 to the present. The 56 stories and 4 novels written by Doyle before 1923 are in the public domain. A public domain work is a work that is not protected by copyright. Public domain works belong to the public and anyone can use them without permission and, therefore, without infringing the rights of the most recent copyright owner. Leslie Klinger planned to publish a collection of stories created by modern authors and based on the Sherlock Holmes characters. Conan Doyle Estate, Ltd., heard of the plan and threatened to prevent distribution of the book. Klinger brought a declaratory judgment action against the estate, asking the court to declare that he can use the Sherlock Holmes stories and novels that are no longer protected by copyright. The district court ruled in Klinger’s favor and the Seventh Circuit affirmed.
An Actual Legal Controversy Exists.
The estate argued that the district court did not have jurisdiction because there was no actual case or controversy between the parties. Article III of the U.S. Constitution requires an actual legal dispute between the parties. Federal courts can’t give advice on theoretical legal questions.
The Seventh Circuit ruled that an actual controversy existed in this case.
The Doyle estate had made clear that if Klinger succeeded in getting his book published the estate would try to prevent it from being sold by asking Amazon and the other big book retailers not to carry it, implicitly threatening to sue the publisher, as well as Klinger and his co-editor, for copyright infringement if they defied its threat. The twin threats—to block the distribution of the book by major retailers and to sue for copyright infringement—created an actual rather than merely a potential controversy.
(Opinion pdf page 5).
Copyright Does Not Extend to the Sherlock Holmes Stories that are in the Public Domain.
The issue is 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.
(Opinion pdf page 8).
The Seventh Circuit could not find any basis for extending a copyright beyond its expiration.
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 ‘incomplete’ 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.
(Opinion pdf page 13).
The Seventh Circuit was not impressed with the estate’s arguments that failure to extend the copyrights would discourage creativity. The Court pointed out that extending the copyright term decreases the amount of material in the public domain for other authors to draw on, making it more difficult for other authors to create new works.
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 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.
(Opinion pdf page 15).
This case is Leslie S. Klinger v. Conan Doyle Estate, Ltd., No. 14-1128, Seventh Circuit Court of Appeals.