Led by Judge Richard Posner, the Seventh Circuit Court of Appeals recently refused what Posner called a “quixotic” attempt to extend copyright law. While the holding was perhaps to be expected, the opinion introduced a mystery of its own: If not copyright, what will stop today’s public-domain derivatives from sullying the eccentric detective’s hard-earned reputation?
The Conan Doyle Estate’s Failed Quest
Like many cases, Klinger v. Conan Doyle Estate Ltd. began with an implied threat of litigation, when the Arthur Conan Doyle’s estate threatened to meddle with the publication of editor Klinger’s modern-day, inspired-by anthology that depicted Holmes and his moustache-clad sidekick Watson. Klinger sought a declaratory judgment that he is free to use public domain elements of Conan Doyle’s original story and characters. The estate fought this, arguing that Conan Doyle’s Holmes and Watson characters are “complex” and “round,” and that their full complexity was not revealed until later stories. Because these later stories will be copyrighted until at least 2018, the estate asserted that the later additions protect the original character from derivatives until this time.
The Seventh Circuit found this theory wholly unsupported by statute and case law—an author cannot extend copyright protection of a fictional character by later altering the character. Rather, to the extent they are original, later-but-derivative alterations are protected only incrementally, while the character’s core passes to the public domain at the appointed time. In short, alterations do not revive expired copyrights on original characters, and any variations are allowed so long as they don’t infringe either the plot lines or the character developments of the still-protected stories.
Protecting Sherlock’s Honor
As an apparent aside, Judge Posner’s opinion imagines a situation in which the Klinger holding would allow modern authors to disparage Sherlock. For example, a derivative work may depict the public-domain Holmes as an idiot or a drug dealer. Though the real Holmes at times borders on both of these, one can imagine depictions of the detective far afield from the original. Such depictions, Judge Posner posits, could inflict upon the Holmes character a type of harm analogous to that inflicted by trademark dilution. The classic trademark dilution scenario would, for example, include a “Rolls-Royce Hot-Dog Stand.” It doesn’t take Holmesian powers to deduce that the luxury auto maker would have nothing to do with the hot-dog stand. Yet, the simple juxtaposition of high and low can tarnish Rolls-Royce in consumers’ minds—according to Judge Posner, Rolls-Royces and hot dogs just don’t mix.
Though perfectly understandable and perhaps undesirable, the harm inflicted by Posner’s hypothetical hot-dog stand warrants no remedy under U.S. copyright law. On the contrary, the fair use doctrine provides a safe harbor for parodies and burlesques of copyrighted works and characters. In some foreign countries, moral rights provisions protect an author’s honor and reputation in perpetuity, thus providing a remedy for truly deviant, revisionist derivative works. But in the U.S., since the original Holmes stories and characters have passed into the public domain, we should be prepared for the detective to do any number of uncharacteristic things. Unable to solve the mystery of how extending copyright protection of literary characters would ultimately affect creativity, Judge Posner refused to stretch copyright protection beyond well-grounded limits. Ultimately, copyright protection is a two-edged sword that both induces and prevents creativity. Unsure which way the sword would cut in this case, and without any legal support for its theory, Conan Doyle’s estate wasn’t able to convince the Seventh Circuit to let it sally forth on its quixotic quest to protect Sherlock Holmes.
But protecting Holmes’ character at the potential expense of creativity is no longer the province of copyright law now that the old chap has moved from Baker Street to the public domain.