In April, the parties completed their briefs in the Conan Doyle Estate’s appeal to the Seventh Circuit Court of Appeals in the Sherlock Holmes case (click here for my article on the Federal District Court’s decision in Klinger v. Conan Doyle Estate), and in May, just before the Memorial Day weekend, the Seventh Circuit Court heard oral arguments from the parties. To say that the hearing was an uphill battle for the Estate and that Judge Richard Posner repulsed the Estate’s attorney’s every step up that hill is to make an understatement (click here for an archived audio recording of the oral argument which occurred on 5/22/2014). Judge Posner barely let the Estate’s attorney put two sentences together without interrupting him either with a question, a demand for a better answer to a previous question, or a scoffing remark. 

Whether Posner’s apparent predisposition against the Estate prevented his giving the Estate a fair hearing is debatable, but it is certainly understandable, because the legal theory that the Estate brought to the Court on appeal is one that the District Court has already described as “novel” and running “counter to prevailing case law.”

A summary of the background may provide helpful context for understanding the Estate’s legal theory. The plaintiff, Leslie Klinger, is a Sherlock Holmes scholar who wants to publish an anthology of new Holmes stories written by contemporary writers but based on the writings of Sir Arthur Conan Doyle. When the Estate demanded a license fee and threatened to prevent the distribution of Klinger’s book upon publication, Klinger sued for declaratory relief: he wanted a court to say that the 50 Holmes stories and novels published before 1923 (the current copyright cut-off date in the United States) are in the public domain and no longer protected by copyright, and therefore anyone can use the elements and materials in those stories, including the characters of Holmes and Watson, for any purpose in any kind of new artistic works. The Estate, building on a theory of the copyrightability of complex literary characters independent of the works that contain them, argued that Conan Doyle created the Holmes and Watson characters as unified whole works of art throughout the entire canon of 60 stories, that the characters were not completed until Conan Doyle had written the last 10 stories that were published after 1923, and because those stories are still protected by copyright in the United States and will be until at least 2022, Klinger could not make unlicensed use of the characters.

The district court sided with Klinger and said that the elements of the Holmes and Watson characters contained in the pre-1923 materials passed into the public domain with the works that contain them. The Estate, asserting that the district court’s ruling injures Conan Doyle’s unified Holmes and Watson characters by dismembering them into public domain parts and copyrighted parts, brought its theory of character completeness to the Seventh Circuit.

An important component of the Estate’s argument is that Conan Doyle did not create Holmes and Watson in a linear manner because the final 10 stories include details about them as much younger men, which supports the Estate’s assertion that, as it states in its appellate brief, “at nearly any point in their fictional lives the characters depend upon creative contributions” contained in the last 10 stories, and so Holmes and Watson are “works of authorship substantially completed in the Ten Stories – and therefore protected by copyrights for 95 years from their completion, or December 31, 2022.”

There are several problems that threaten to undermine the Estate’s legal theory. First, the credibility of the theory depends on a determination of authorial intention. When did Conan Doyle consider the character of Sherlock Holmes to be complete? Did Conan Doyle even address the idea of the completeness of the characters? Did Conan Doyle envision the creation of Holmes as requiring a delineation over a series of 60 stories and novels, or, did Conan Doyle create his character piecemeal as the story ideas came to him over time? To date, the Estate has produced little evidence that Conan Doyle thought of his characters in the way that the Estate has presented them to the court – as creations which were purposely developed as works-in-progress through a unitary vision of 60 stories – and the Estate has not even established that when Conan Doyle put pen to paper in the 1880s and started his first Holmes story, which became the novel “A Study in Scarlet”, he intended to write 60 works about Holmes and Watson.

Second, the Estate, perhaps through too much reverence for the works it seeks to protect (and monetize through licensing), has repeatedly tried to persuade the courts that Holmes and Watson are such complex characters that they deserve to be treated as human beings with souls that should not be broken into public domain portions and copyrighted portions, rather than as works of art that come to us in fragmented perceptions through the words of 60 literary works. By taking such a position, the Estate must overlook certain remarks made by Conan Doyle himself, who, for example, stated, in 1924 in his “Sidelights on Sherlock Holmes” that “If I have sometimes been inclined to weary of [Holmes], it is because his character admits of no light or shade.” Skirting such unfortunate and somewhat embarrassing words about the simplicity of Holmes’ character, the Estate, when referring in its brief to the significant changes that occur in Holmes in the final 10 stories, says “Like a human, the way we know Holmes’s character mellowed is from his actions, which reveal that he has been changing,” and then the Estate asserts “where and exactly when and how much he changed is, like human nature, somewhat mysterious.” Such an assertion disregards the plain fact that Holmes is the creation of Conan Doyle and that changes to Holmes’ character are not the results of mysterious personality forces acting on a living human being but rather are the results of artistic decisions made by Conan Doyle. Klinger understandably scoffs at this assertion in his responsive brief: “Appellant resorts to magic, not unlike an alchemist struggling to turn the lead of public domain into the gold of copyright.”

Third, the legal standard that the Estate wants the Seventh Circuit to adopt does not translate well from theory to practice. The Estate requests that “on deciding that a character is sufficiently original, a court should determine in what stories a 1909-Act character was created, and protect that character for the statutory term running from publication of the work in which that character was completed by its original author.” Adopting this standard as a test for determining copyright duration for characters created in serial works does not accord with prevailing law (as the District Court already noted) because copyright duration under the current Copyright Act of 1976 for works published while the 1909 Act was still in effect is largely determined by the date of publication. Further, adopting this standard would require judges to become literary critics: in each instance, the judges would have to review the entire series of works in which a character appeared and try to determine when a character was “completed” by its original author. Engaging in that analysis would raise a more basic and far murkier question: what does it mean to “complete” a character in a work of literature? That is not a legal question; it is an artistic question of literary interpretation, at least, if not an even more basic philosophical question about the nature of personality as reflected in literature. Because it is not a legal question, it is therefore not a question that most judges would approach with any kind of comfort.

Finally, the Estate faces the problem that its theory crumbled under questioning. When Judge Posner repeatedly asked the Estate to provide an example of a permissible unlicensed use of the pre-1923 delineations of the character of Sherlock Holmes under the Estate’s theory, the Estate faltered by making half-hearted attempts to provide a satisfactory example instead of standing firm on its own theory and arguing that no commercial use of Sherlock Holmes is permissible without a license because the character is a unitary work whose delineation throughout the entire canonical sequence of 60 stories was not completed until the sixtieth story was written and the character is still protected by copyright in the United States. In short, the oral argument revealed that the Estate does not appear to have the courage of commitment to its own theory.

And now we await the decision from the Seventh Circuit. If the oral argument is an indication of the Court’s thinking on these issues, we can anticipate an affirmation of the District Court’s decision that the Holmes and Watson characters as delineated in the 50 pre-1923 stories now belong to the world.