Sherlock Holmes aficionados will recognize this command as something Holmes would occasionally shout at his roommate, Dr. Watson, when Holmes was on the trail of an exciting clue to solving an otherwise impenetrable mystery. Holmes, who immodestly considered himself the greatest detective then alive, might now be shouting it again, but in this instance he would be wise to wait until after the U.S. Seventh Circuit Court of Appeals receives from the lower court, and acts on, a yet-to-be-rendered decision involving his status as a public domain figure. (Dr. Watson’s as well.)
The current seemingly impenetrable (until the courts decide) mystery involves the answer to the question of whether a continuing fictional character can enjoy copyright protection where the character has been featured in a number of stories now in the public domain, but where there are other stories featuring the character that are still under copyright protection. The courts are being asked to play Holmes and answer this question because of a declaratory judgment action filed by an author, Leslie S. Klinger, after he was threatened by the Estate of Arthur Conan Doyle (Estate) because of Klinger’s unwillingness to pay royalties to and receive permission from the Estate to write about some of the Doyle stories and their characters. Doyle was the author of all of the Sherlock Holmes stories and creator of the complex characters, obviously including Holmes himself, featured in them. (To be clear, a public domain work requires neither a license nor any permission in order to be freely used by anyone, for any purpose, without restriction.)
Doyle began his stories with the publication of a novel, A Study in Scarlet, featuring Holmes, in 1887. Doyle followed up with at least 60 mostly shorter stories featuring Holmes and a number of other characters. As a citizen of the United Kingdom, Doyle is subject to the copyright laws of that country, with the result that all of the U.K. copyrights in Doyle’s works have expired and those works are in the public domain. But this lawsuit deals with U.S. law and the desires of a U.S. author to write about Doyle and his fictional characters for U.S. consumption. Under U.S. copyright law, the current magical cutoff year for copyright protection is 1923; if a work was created before January 1, 1923, it is probably in the public domain, and if created after 1923, a work is presumptively still enjoying copyright protection.
Klinger’s position is that he shouldn’t have to pay royalties because the copyright in most of the Holmes stories has expired and the works are in the public domain in the U.S., making the characters that appeared in those stories also in the public domain. The Estate says, correctly, that although most of Doyle’s stories are in the public domain both here and in the United Kingdom, there are ten stories written and published in the U.S. after 1923 and thus still enjoying copyright protection here. Klinger’s rejoinder is that he has compiled and is publishing a list of characters, character traits, dialogue, settings, artifacts, story lines and other character elements that have been drawn and identified many times in the stories published before 1923, but is not copying any of the prose content of the post-1923 stories. Therefore, these sometimes disparate and unique characters are in the public domain in the U.S. as well, and no royalties should accrue. The Estate, says Klinger, is wrongfully demanding the payment of royalties, without which it will, to repeat the Estate’s threats, work with Amazon, Barnes & Noble and other retailers to make certain Klinger’s book will not be available through those sources.
To further explain the Estate’s position, it believes that even if the bulk of Doyle’s Sherlock Holmes stories are in the public domain in the United States, Doyle’s characters deserve continuing protection for as long as any of his stories featuring those characters remain under copyright because they are complex literary characters and should be treated as whole; their traits and idiosyncrasies cannot be divided into public domain and protected aspects. The Estate further argues that “The arc of the character exists complete only in the series,” and “it is (therefore) impossible to split the characters into public domain versions and complete versions.” Continuing: “”Plaintiff (Klinger) suggests that Holmes and Watson can be dismantled into partial versions of themselves, but a complex literary personality can no more be unraveled without disintegration than a human personality.”
It seems unarguable that the characters of Sherlock Holmes, Dr. John Watson, Mycroft Holms (Sherlock’s brother), Inspector Lestrade and Professor Moriarty have been drawn by Doyle in great detail and with full-featured realism. They appear in many of the Sherlock Holmes stories and are continuing characters that readers become familiar with. But are they protectable both inside and outside of the world in which they realistically live? In Warner Bros.Inc. v. Columbia Broadcasting System, 216 F.2d 945 (9th Cir. 1954), the court noted, in a discussion about the copyrightability of characters with their names, that “It is conceivable that the character really constitutes the story being told (and is therefore protectable), but if the character is only the chessman in the game of telling the story he is not within the area of protection afforded by the copyright.” And Judge Learned Hand, in Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930), said, “The less developed the characters, the less they can be copyrighted.” Backing into this logic, it may be true that Doyle’s continuing characters really constitute the story being told, and it might therefore appear that if otherwise continuing characters in public domain stories still appear in copyrighted works, they may continue to enjoy protection.
But Holmes himself might argue that, as enunciated in Pannonia Farms, Inc. v. USA Cable, 72 USPQ1090 (SDNY 2004), “Like the Amos & Andy characters, the Holmes and Watson characters have been delineated in over 50 stories that no longer possess copyright protection … thus, at most, only increments of expression added by” the post-1923 Sherlock Holmes stories are protected. And one of the key words in the opinion is “expression.” It is a basic tenet of copyright law, domestic and foreign, that copyright does not protect ideas, only their expression. Applying Holmesian logic again, it would seem that when something like the idea of a fictional character’s traits and personality is a portion of a work that enters the public domain, there is simply no precedent for allowing that portion to escape the public domain availability of the rest of the work. (Copying of expression does not seem to be asserted here.)
The U.S. District Court for the Northern District of Illinois will shortly be considering the merits of Klinger’s Motion for Summary Judgment once the briefing schedule has concluded, and it seems highly likely that no matter which way that motion is decided, the case will either immediately or eventually go up to the Seventh Circuit on appeal. It will, for Holmes devotees, be fun to watch.