On January 21, 2014, the Conan Doyle Estate appealed to the Seventh Circuit the ruling made the day before Christmas Eve of 2013 by the Federal District Court for the Northern District of Illinois that the characters of Sherlock Holmes and Doctor John Watson now belong to the world. (The case is Klinger v. Conan Doyle Estate, Ltd.: for background on this case, see my two previous articles by clicking here and here).
Or most of what composes their characters, at any rate. To state it with more precision, the Court found that the character elements of Holmes and Watson that exist in the 50 short stories and novels that Sir Arthur Conan Doyle published before 1923 (the threshold date for copyright protection in the United States) entered the public domain with the stories that contain them, and, therefore, copyright law no longer applies to them, and they are free for use by anyone without limitation or restriction. To state it with absurd precision, because there are 60 stories in the entire Holmes canon, and 10 of the stories published in the volume entitled “The Casebook of Sherlock Holmes” are still protected by copyright in the United States, under the Court’s ruling about 5/6ths (or 83.3 percent) of the elements which compose the characters of Holmes and Watson have now fallen out of copyright protection and into the public domain.
The Estate, faithfully pursuing its mission to earn revenue from the literary works of Sir Arthur Conan Doyle for as long as possible, had tried to persuade the Court to find that copyright protection for the characters of Holmes and Watson extended in a unified whole throughout the series, from their beginnings in A Study in Scarlet published in 1886 to the last 10 of the 12 “Casebook of Sherlock Holmes” stories published after 1923 and still under copyright protection in the United States until at least 2022. The Estate’s argument germinated from a remark made by Judge Learned Hand in 1930 that implies that the more complicated a literary character is, the more that copyright law is available to protect that character. Building on the inchoate legal theory contained in that remark, the Estate argued that because Conan Doyle continued to develop the complicated characters of Holmes and Watson throughout the series, copyright protection for the characters of Holmes and Watson applied not only separately from the stories that contained them, but also in spite of the fact that the pre-1923 stories that contained Holmes and Watson had passed out of copyright protection and into the public domain.
The Court found the Estate’s argument to be “novel” (pun intended? – we can only hope!) but said that “even the most creative of legal theories cannot trump” the absoluteness of the 1923 dateline, and that the Estate’s position “runs counter to prevailing case law.” The foremost 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 popular Amos & Andy characters, which existed in radio and television scripts from 1928 through 1955. The Second Circuit said that the elements of the Amos & Andy characters as they existed in the pre-1948 scripts, for which the U.S. copyrights had not been renewed, passed into the public domain with the scripts that contained them, while the character elements in the post-1948 scripts remained under copyright.
The Estate made two objections to Silverman as persuasive authority applicable to the instant case. First, the Estate argued that applying Silverman would “dismantle” Holmes and Watson into public domain versions and copyrighted versions, and that such a dismantling could not be done because Holmes and Watson are unitary characters who exist as whole creations through the entire 60 stories. “It is impossible to split the characters into public domain versions and complete versions” the Estate said. To this objection, the Court responded rather shortly that making such a division is “precisely what prior courts have done.”
Second, the Estate argued (again based on Learned Hand’s remark but developed with a small admixture of literary snootiness) that Silverman could not apply in the instant case because the characters of Holmes and Watson are far more complicated than the “two dimensional” and “flat” characters of Amos & Andy. The Court responded to that argument by saying that the Estate failed to provide “a workable legal standard for determining when characters are sufficiently developed to warrant copyright protection through an entire series” and also failed to provide “any case law that supports its position” before concluding with fatal definitiveness that “The effect of adopting [the Estate’s] position would be to extend impermissibly the copyright of certain character elements of Holmes and Watson beyond their statutory period, contrary to the goals of the Copyright Act.”
So much for the Estate’s legal theory, at least for now, until the Estate gets in front of the Seventh Circuit. It was a clever and highly interesting theory because it essentially posited that Holmes and Watson have unitary souls that deserve to be protected by copyright apart from the works that contain them even when most of those works have fallen out of copyright protection, but ultimately it was purely self-serving and unsupported by law. It was also unsupported by some of the facts of Conan Doyle’s writing (though the Court did not need to reach those facts). It is well known that Conan Doyle became weary of Sherlock Holmes after having written two novels and 23short stories about him, and that he wrote “The Final Problem” to end the great detective’s life by having Professor Moriarty grapple with him in a fight which ended with both of them tumbling over the Reichenbach Falls to their deaths. It was only after a clamorous outcry from Conan Doyle’s readers and some pleading from the “Strand Magazine” that Conan Doyle consented to bring Holmes back from the dead, and so we have his return in “The Adventure of the Empty House” and then the rest of the stories followed. Those facts tend to support the assertion that Conan Doyle did not have a complete version of Holmes in his head when he started writing and that he originally intended to write 60 novels and short stories in which to reveal that complete version of his character. Those facts support theorizing a composition method of layering rather than of discovering, of building up complexity over time rather than of removing opacity so that in time a complex whole can be seen. To use a metaphor, Conan Doyle appears to have created Holmes more like a painter who adds brushstrokes of paint to the canvas as his vision develops rather than as a sculptor who sees the figure in its entirety within the block of marble and then chisels away the excess to reveal the beautiful complexity of the whole. Of course, we can never know for certain how much of the wholeness of the characters truly existed from the beginning in Conan Doyle’s mind, but that does not change the analysis under U.S. Copyright law, because copyright protects only the expressions of ideas and not the ideas themselves in abstract or inchoate form in a writer’s mind.
So, for now at least, we have a bright line rule: “Where an author has used the same character in a series of works, some of which are in the public domain, the public is free to copy story elements from the public domain works.” This rule will immediately affect early 20th century serialized characters whose serialization history falls on each side of the 1923 benchmark, characters as diverse as Edgar Rice Burroughs’Tarzan and P.G.Wodehouse’s Jeeves, unless, of course, the Estate succeeds in its appeal to the Seventh Circuit this coming spring. And for that we must wait.