basil_rathbone_2Modern lore, especially courtesy of movies and television, is filled with many different depictions of that famed Baker Street detective Sherlock Holmes and his Boswellian companion, Dr. John Watson. And while actor Nigel Bruce may have fleshed out Watson as a flabbier character than an army medic recently returned from the rigors of campaigns in India or Afghanistan, cinephiles, especially, would be hard pressed to envision a portly Sherlock. So were lawyers for the Estate of Sir Arthur Conan Doyle, creator of these classic characters, in trouble already in arguing before one of the famed appellate jurists of this day about a “round” late-career Holmes and Watson, deserving of more than a century’s worth of copyright protection? Yup.

In his typically crisp and acerbic fashion, U.S. District Judge Richard Posner, writing for the U.S. Court of Appeals for the Seventh Circuit, has just shredded a novel argument that copyright on a literary creation should be extended just because characters change and develop over time. This keeps the Sherlock Holmes canon, of course, in the public domain.

The judge, whose opinions are oft-cited and are known for their sharp prose, dipped into his legal lexicon to describe the defendant-appellant’s legal theory in this copyright case with the same term he used to describe the war on drugs, dubbing both “quixotic.” Ouch. He also remarked about counsel’s futile attempt to persuade by drawing large circles in the air with his arms. There was lots of flailing in the case and here’s why.

As noted earlier  on this blog, Doyle’s creation has a storied history, with Holmes and Watson appearing first in a piece published in 1887. The detective duo did not make their American debut until 1890. Doyle wrote in total 46 stories and four novels before 1923 and all of these entered the public domain, in keeping with U.S. Copyright law. Ten stories he wrote and published after 1922 remain in protection, until the last of these tales falls into the public domain in 2022.

Leslie S. Klinger,  meantime, is an anthologist of Holmes stories who has written many pieces about the characters. He asserted that he has been prevented from publishing his latest work, a collection of contemporary authors’ takes on Holmes and Watson et al, due to the Doyle Estate’s demands that he acquire a license from them for the characters’ use. Klinger says he could correctly follow copyright law and freely use the pre-1923 works. After receiving various threats from the Estate, Klinger sued in federal court in Chicago. The Estate defaulted, failing to appear. But Klinger kept on, seeking declaratory judgment as to the copyright status of the Holmes canon: U.S. District Court Judge Ruben Castillo ruled that Doyle’s pre-1923 stories were in the public domain, with the remaining ten still protected.

Doyle’s Estate then went on to appeal, arguing that the author’s characters were “continually developed throughout the entire Canon” and that the “copyright protecting the ten stories should extend to the Sherlock Holmes and Dr. Watson characters and the story elements pertaining to those characters.” These elements might include that Dr. Watson’s second wife was introduced post-1923 and Holmes’ retirement was announced in 1926. The Estate went further on appeal, however, and said that these later character developments also should mean that the copyright protecting the post-1923 publications should be extended to cover those that were published earlier and already gone into public domain. Here, the Estate’s counsel advanced the notion that Holmes and Watson had become more “round” and full as characters, not “flat” as they had been earlier, and that copyright protecting the characters’ later and more complete development had to cover their earlier presentation, too.

Poppycock, said Posner, turning to Silverman v. CBS Inc., 870 F.2d 40, 49–51 (2d Cir. 1989) and affirming Castillo’s ruling. He said copyright law was clear that the pre-1923 works were in public domain and “only original elements added in the later stories remain protected,” while the Estate, effectively and incorrectly, was seeking135 years of protection for Holmes and Watson with its expansive theory of how later developments should extend a later-date copyright to earlier work. Neither Congress nor the courts have seen fit to consider such sweeping copyright, he said, terming the Estate’s legal argument “quixotic.”

As self-described “IP maven” Ron Coleman writes on his Likelihood of Confusion legal blog about this case:  “So how many times, exactly, do you want your client to read that there are ‘no legal grounds’ for the outcome he seeks? Makes you feel like you missed something, uh, elementary, you know?”