Let’s call it the Case of the Sudden Public Figure, an unraveling mystery that enmeshes a cultural icon and wraps him anew in laws that many fail to know nor appreciate. In case you missed exactly how this conundrum got cracked — and the coverage may have hit a pop culture kind of smother level, especially considering all the factors involved — the clues for practitioners of Entertainment Law may be said to rest in matters elementary: chronology, character, character trait and storyline. So how does the year 1923 and the presence of a second wife, an athletic history and a retirement decide whether Sherlock Holmes, the legendary, deer-stalker wearing British deductive detective, belongs with his crew, including Dr. Watson, as literary creations in the public domain, free for public use. Or not? Brave on here, dear reader, if you haven’t already partaken of this yarn (and we’ve got lots of interesting links, even if so ….)In case you missed this report or this one or this one or this one, of course, Ruben Castillo, the chief judge of the U.S. District Court for the Northern District of Illinois, recently decided that pre-1923 story elements from Sir Author Conan Doyle’s Sherlock Holmes have entered the public domain and now are free for the public to use. In applying the “incremental expression” test, however, Castillo also ruled that post-1923 story elements in the Holmes saga still are protected under copyright. (With thanks to Entlawdigest.com,) the court’s opinion can be read here.
The decision arose in a case launched on Valentine’s Day, 2013, by Leslie Klinger, a writer and editor in Southern California who sought a declaratory judgment that “various characters, character traits, and other story elements” from the myriad volumes and stories about Holmes no longer were copyright protected. Klinger was in the process of publishing a second anthology of short stories that integrated characters and story elements from Holmes when the late author’s estate, Conan Doyle, asserted it held exclusive copyright over their use. If Klinger wanted to use the characters, he had to secure a license to do so, the estate contended.
Conan Doyle argued that Holmes and his sidekick Dr. Watson continued to be developed as characters over the years and should “remain under copyright protection until the final copyright story enters the public domain in 2022.” The story of Sherlock Holmes and Dr. Watson first was published in 1887 and first released in the United State in 1890. Sir Author Conan Doyle published a total of four novels and fifty-six short stories, forty-six of which were published in the United States before 1923; the court, therefore, declared these story elements are in the public domain.
Next, in determining the “increments of expression” test, the court looked to a governing case by the U.S. Court of Appeals for the Seventh Circuit in Schrock vs. Leaning Curve Int’l. Inc., 586 F.3d 513, 518, 521 (7th Cir. 2009). The appellate judges held there that an author of a derivative work can receive “copyright protection in the incremental original expression he contributes as long as the derivative work does not infringe the underlying work.” Further, the appellate decision found that originality can be met if the new work has enough creative variation to be distinguished from the underlying work. In examining the remaining ten stories, post-1923 and at issue in Klinger’s case, Castillo decided that details about Dr. Watson’s second wife, the doctor’s background as an athlete and Holmes’ retirement from the detective agency were increments of expression and were protected by copyright.
“Sherlock Holmes belongs to the world,” Klinger said in a statement put out on the Free Sherlock website. “This ruling clearly establishes that. Whether it’s a reimagining in modern dress (like the BBC’s Sherlock or CBS-TV’s Elementary, vigorous interpretations like the Warner Bros. fine films, or new stories by countless authors inspired by the characters, people want to celebrate Holmes and Watson. Now they can do so without fear of suppression by Conan Doyle’s heirs.”
Conan Doyle, of course, may write another chapter in this case — stay tuned — as reports in the British press, among other things, underscore the financial stakes involved; the BBC is but one of many clients, including American broadcasters, who have paid licensing fees for Holmes and related characters, and counsel for the estate have expressed concern that other of the United Kingdom’s literary marvels, gadzooks, such as Bond, James Bond, might be devoured by the pop producing maw of U.S. entertainment interests.