Last night Judge Posner handed down the opinion of the Seventh Circuit Court of Appeals on the case involving the dispute over whether the characters of Sherlock Holmes and Dr. Watson continue to be protected by copyright even though 50 of the 60 works by Sir Arthur Conan Doyle that feature the characters are now too old to qualify for copyright protection in the United States. The case is Klinger v. Conan Doyle Estate, Ltd. The Seventh Circuit affirmed the opinion of the federal district court which issued in December of 2013: Holmes and Watson (or the 5/6ths of them now too old to be protected by copyright ) now belong to the world.
This case began when the Conan Doyle Estate threatened to prevent the distribution of a proposed anthology of new Holmes stories by contemporary writers unless it received a license fee for the proposed uses of elements from the writings of Sir Arthur Conan Doyle. Leslie Klinger, a Holmes scholar and the editor of the proposed anthology, sued the Estate for declaratory relief: Klinger asked a federal district court to say that the 50 Holmes novels and stories published in the United States before 1923 (the current copyright cut-off date in the United States) now stand in the public domain and are no longer protected by copyright, and, consequently, anyone in the world can use any elements of those old stories, including the characters of Holmes and Watson, for any purpose in any new artistic works, without having to ask anyone’s permission or pay a license fee to anyone. The Estate, finding itself a defendant in a declaratory judgment action and 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 works of art throughout the whole series of 60 stories, that the characters were not completed until Conan Doyle had written the final 10 stories published after 1923 as “The Casebook of Sherlock Holmes”, and that, because those last 10 stories are still protected by copyright in the United States and will be until 2022, Klinger could not make unlicensed use of the characters.
The Estate did not succeed at the district court. With perhaps an intended pun, the district court complimented the Estate for proposing a “novel” legal theory about Conan Doyle’s compositions, but then went on to say that “even the most creative of legal theories cannot trump” the absoluteness of the pre-1923 publication rule in the United States, and that consequently the Estate’s position “runs counter to prevailing case law.” The district court held that the elements of the Holmes and Watson characters contained in the stories published before 1923 passed into the public domain with the works that contain them. To the Estate’s objection that the unitary natures of Holmes and Watson should not be dismembered into public domain parts and copyrighted parts, the district court said, rather curtly, that making such a division is “precisely what prior courts have done.” The leading case standing against the Estate’s position is Silverman v. CBS, Inc., a 1989 case in which the Second Circuit considered the rights to the Amos & Andy characters, which were popular enough to be featured from 1928 to 1955 both in radio then in television, but which became the subject of a dispute because the scripts written before 1948 had lost copyright protection due to non-renewal. The Second Circuit said that the elements of the Amos & Andy characters contained in the pre-1948 scripts passed into the public domain with the scripts that contained them, while the character elements in the post-1948 scripts remained under copyright.
When its legal theory found no sympathetic ear in the district court, the Estate appealed to the Seventh Circuit, where it asked the Court to determine the duration of copyright of Holmes and Watson as works of art beginning on the date the characters were “completed” by Conan Doyle. Because Conan Doyle did not create Holmes and Watson in a linear manner and the last 10 stories include details about them as much younger men, the Estate asserted in its appellate brief, that “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.”
Two big problems threatened to undermine the Estate’s “character completion” theory of copyright duration in the Seventh Circuit. First, the theory’s credibility depended on a determination of authorial intention. Did Conan Doyle envision that the creation of Holmes and Watson would require delineation over a series of 60 stories and novels, or, did Conan Doyle create his characters piecemeal as the story ideas came to him over time? The Estate produced no evidence that Conan Doyle thought of his characters in the way that the Estate presented them to the courts – as whole creations purposely developed as works-in-progress through a unitary vision of 60 stories which Conan Doyle held fully in mind when he first put pen to paper in the 1880s and started to write what became the novel “A Study in Scarlet.” In fact, the evidence for the opposite view appears much stronger because it is well known that Conan Doyle grew weary of Holmes, that he intended his 24th short story, “The Adventure of the Final Problem,” to put an end to Holmes when the character, while grappling Professor Moriarty, plunged to his death into the abyss of the Reichenbach Falls, and that only the clamorous protests from his publisher and readers of the “Strand Magazine” reluctantly persuaded Conan Doyle to resurrect Holmes in “The Adventure of the Empty House.”
Second, the character completion theory led the Estate, perhaps through too much reverence for the works in its care, to try too hard to persuade the Seventh Circuit that Holmes and Watson are such complex characters (“round” as opposed to “flat”) that they deserve to be treated as human beings with souls that should not be broken into public domain portions and copyrighted portions. By taking such a position, the Estate had to overlook several comments made by Conan Doyle, who stated, for example, 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, in its appellate brief, such unfortunate and embarrassing remarks, the Estate, when referring to the significant changes that occur in Holmes in the final 10 stories, said “Like a human, the way we know Holmes’s character mellowed is from his actions, which reveal that he has been changing,” and then asserted “where and exactly when and how much he changed is, like human nature, somewhat mysterious.” Such an assertion disregarded the clear fact that Holmes was created by a writer 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 Sir Arthur Conan Doyle. Klinger scoffed at the Estate’s 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.”
So did Judge Posner for the Seventh Circuit panel. Posner gave the Estate such a brow beating during the oral argument that he barely allowed the Estate’s counsel to speak a full sentence without interrupting him either with a question, a demand for a better answer to a previous question, or a derisive remark about the Estate’s legal theory. Posner’s clear disapproval of the character completeness theory continued into the Court’s opinion itself. After treating the Estate’s “round” and “flat” analogy at length, and making a point of deriding the Estate’s counsel once more (“Repeatedly at the oral argument the [E]state’s lawyer dramatized the concept of a “round” character by describing large circles with his arms”), Posner summarized by saying “Holmes and Watson, the [E]state argues, were not fully founded off until the last story written by Conan Doyle.” And then came the zinger: “What this has to do with copyright law eludes us.” Posner went on to say that the Estate’s appeal “borders on the quixotic . . . once one realizes that 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.”
The Seventh Circuit, like the district court, followed the Second Circuit’s Silverman opinion. As soon as he reaches the merits, Posner writes “We cannot find any basis in statute or case law for extending a copyright beyond its expiration”, and then he cites Silverman for the rule that “When a story falls into the public domain, story elements – including characters covered by the spired copyright – become fair game for follow-on authors, as held in Silverman . . . a case much like this one.”
The most helpful aspect of the opinion may be its affirmation of the district court’s view that characters created in serialized fiction are copyrightable works in their first delineation and then their developments in subsequent appearances in later works of the series are to be considered derivative works under copyright law. “From the outset of the series . . . Holmes and Watson were distinctive characters and therefore copyrightable,” writes Posner, and the “additional features” which Conan Doyle added “to their portrayals” in later works resulted in “somewhat altered characters” which “were derivative works, the additional features of which that were added in the 10 late stories being protected by the copyrights on those stories.” The clarity of this conception that subsequent character developments through serialization are to be considered as derivative works under U.S. copyright law may be the practical legacy of this case.
The Seventh Circuit’s affirming opinion will have immediate applicability to early 20th century serialized characters whose serialization history falls on each side of the 1923 benchmark, including characters as diverse as Edgar Rice Burroughs’ Tarzan, Rider Haggard’s Allan Quartermain, P.G. Wodehouse’s Jeeves, and even another famous detective – Agatha Christie’s Hercule Poirot. Further, the opinion may one day be cited if, decades from now, copyright duration disputes arise regarding popular characters serialized in motion pictures such as the Star Wars and Star Trek films, when the first works in those boldly ongoing series fall into the public domain.