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Arthur Conan Doyle Estate Now Being Sued to Settle Whether Sherlock Holmes is in the Public Domain

3089211552_31c64f4bbb[1]I have long argued that copyright law has grown far out of proportion and no longer serves the needs of the creators, so I was pleased to read this week about a recently filed lawsuit that could prune back some of the overgrowth.

The noted Sherlockian scholar, Baker Street Irregular and prominent attorney Leslie Klinger, editor of The New Annotated Sherlock Holmes, The Sherlock Holmes Reference Library and The Grand Game: A Celebration of Sherlockian Scholarship, to name a few, has filed a civil lawsuit against the Conan Doyle Estate to determine that the characters of Sherlock Holmes and Dr. Watson are in fact in the public domain.

Mr Klinger is suing (according to the press release) because of the pressure that the Conan Doyle estate applied against Mr Klinger’s latest anthology of Sherlock Holmes inspired stories.

In the Company of Sherlock Holmes was supposed to be published by Pegasus Books and included Holmes stories by numerous well-known mystery/sci-fi/fantasy authors.  The anthology is on hold because the Conan Doyle estate contacted the publisher, asked for a fee, and threatened to block distribution of the anthology if the fee was not paid.

The Conan Doyle estate’s justification for their legal shakedown is at best questionable and is based on a not-entirely settled point of copyright law. Allow me to explain.

As you probably know, the vast majority of the Holmes stories are old enough that they are no longer in copyright in the US. (The author died in 1930, so his entire body work is public domain everywhere but the US.) In the US you can legally download nearly any of the Holmes stories from sites like Project Gutenberg. If you wanted to, you could then format the stories as ebooks or bind them into a paper book and sell the stories. This is completely legal.

But according to the Conan Doyle estate, one thing you cannot do is write a new story that features Sherlock Holmes. There is exactly one remaining Conan Doyle book, The Case-Book of Sherlock Holmes, that still contains copyrighted Sherlock Holmes stories – 10 stories, in fact. Because some of the original stories are still in copyright in the US, the estate believes that they can control who writes new stories. They are using that control to collect fees from publishers, studios, and anyone with deep pockets.

This is not the first time that I heard about the Conan Doyle estate collecting license fees. Star Trek: The Next Generation paid off the estate back in the 1990s. That tv series made 2 episodes that references Sherlock Holmes, and they paid an unnamed fee each time.

What’s more, even the editors currently suing the Conan Doyle estate have paid the fee before when publishing a collection of newly written Sherlock Holmes stories. They’re just not willing to submit to the extortion this time (I think it may have been the alleged threats that tipped the scale, or possibly the size of the fee demanded by the estate):

"The Conan Doyle Estate contacted our publisher," says Klinger, "and implied that if the Estate wasn’t paid a license fee, they’d convince the major distributors not to sell the book. Our publisher was, understandably, concerned, and told us that the book couldn’t come out unless this was resolved. "

Unfortunately for the estate, their interpretation of copyright law is arguably not supported by a plain text reading of current law. US copyright law protects a work as a whole, not the elements in a work.

Or at least that is one interpretation, and it is the legal argument that these editors are presenting in their lawsuit. I tend to agree with the editors because if you take the counter position to its logical conclusion then it is revealed as false.

If the elements of a story can be copyrighted and not the work as a whole, then all the Sherlock Holmes stories that have entered the public domain include a copyrighted element. If the Holmes character is still under copyright then arguably you cannot do _anything_ to _any_ of the Holmes stories. They all mention a copyrighted element and thus cannot be used.

Does that make any sense? I don’t think so, and I am sharing that conclusion in order to offer a simple explanation for why the character is not under copyright.

In any case, it doesn’t matter what I believe. What matters here is what the judge decides.This case was filed in the United States District Court for the Northern District of Illinois, and if appealed will go to the Seventh Circuit Court.

Let’s see what happens.


image by shining.darkness

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fjtorres February 16, 2013 um 5:28 pm

Hmm, they’re acting as if they have a trademark rather than a copyright.

Nate Hoffelder February 16, 2013 um 7:07 pm

Except a trademark would not affect a work of fiction. But yes, that’s how they are acting.

Thomas February 16, 2013 um 6:30 pm

The stated purpose of copyright is "To promote the Progress of Science and useful Arts". I’m baffled as to how paying money to the estate of someone who died 83 years ago promotes anything other than greed.

Pájaro February 18, 2013 um 11:42 am

In fact, they are blocking that very progress right now

the rodent February 16, 2013 um 8:33 pm

Ridiculous. But if it comes to trial in the US, I would predict that — in the grand tradition of the modern US courts always siding with greedy corporations against the public good –they’ll uphold this piffling copyright claim and the entire Holmes canon will come again under copyright in the US, unleashing a chain-reaction "copyright land grab bonanza" that will destroy the entire concept of public domain in the US…

Puzzled February 16, 2013 um 9:37 pm

So, by extension, the Estate can publish a new work with Sherlock Holmes in it, and extend their copyright by another 50/70 years?

I expect Disney to come out in favour of the Estate…

Frank Skornia February 16, 2013 um 10:50 pm

That was the reasoning behind the writing of "Scarlet Pan" for the rights holder of "Peter Pan" and the Dracula book tied to the Stoker descendent. I remember reading that both were attempts to either bring the copyright back into the estate, or to keep it there in the case of Pan.

Nate Hoffelder February 16, 2013 um 11:13 pm

Peter Pan has a perpetual copyright in the UK (or something close to it) which is owned by Great Ormond Street Hospital. There’s no need for trickery:

And the book Peter Pan in Scarlet is a 10 year old authorized sequel, not any attempt to muddle the copyright situation:

Frank Skornia February 17, 2013 um 6:08 pm

Wrong. According the GOSH Peter Pan FAQ ( they have rights to royalty in perpetuity, but it is not a true copyright.

Nate Hoffelder February 17, 2013 um 1:46 pm

That’s a terribly twisted interpretation of copyright law. I agree, Disney will jump in on the side of the Conan Doyle estate.

Puzzled February 18, 2013 um 4:55 am

"So, my dear Watson, would publishing a one line book on the Internet extend copyright?" Sherlock Holmes asked Doctor Watson as he shook him awake from a deep slumber.

Narkor February 17, 2013 um 9:23 am

Pity these authors can’t come up with their own characters and scenarios for their books, but instead keep recycling Holmes.

Is this the brave new future with copyright wound back? Endless remixes of existing works? Hollywood keeps remaking the same movies.

A future of endless remixed fan fiction. How grand.

fjtorres February 17, 2013 um 11:57 am

The estate is shaking down even authors of scholarly studies and analysis of Conan Doyle’s work.
It isn’t about pastiches; it is about a body of work that helped establish a genre and about the ever-reducing scope of the public domain.

Nate Hoffelder February 17, 2013 um 12:02 pm


fjtorres February 17, 2013 um 3:29 pm

Your source.
Your first quote alone is a pretty compelling argument of abuse.

Nate Hoffelder February 17, 2013 um 6:35 pm

I take it that you don’t know about the vast quantity of Star Wars and Star Trek books, not to mention all the other shared universes? It’s a sign that one, people want to read about their favoritie characters, and two, whether the original work is still in copyright is irrelevant.

BTW, this latest anthology was written by famous SF/fantasy authors who obviously have created their own characters before. They contributed Holmes stories partially because it was a professional challenge but also because they liked the characters as much as the fans did. So your attack on them is exceptionally ridiculous.

P.S. You are a snob.

Greg M. February 17, 2013 um 12:58 pm

I’m not a lawyer, but as I see it if some Holmes stories are still in copyright, then authors can’t use the character without permission.

But what gets me is there are so many readers willing to read Holmes stories by authors other than Doyle. This mania for recycling characters seems to me to be a cultural sickness, a lack of imagination and intellect. This is a need for sameness I don’t have the psychological background to explain. I outgrew the desire to read Holmes before finishing all the original stories: there is so much out there to choose from more of the same just isn’t appealing.

Perry February 17, 2013 um 7:06 pm

If you would rather read stories about new characters instead of existing ones, then that’s your choice and more power to you.

But what gets me is that you cast aspersions on those who enjoy reading new stories about Holmes or other favorite characters, labeling people like this as lacking "imagination and intellect." Just because you want new characters doesn’t make you more imaginative or more intelligent, all it does is indicate a different preference.

And that’s fine. But when you start looking down your nose on others because their view differs, then that takes you into the realm of pretentious snobbery.

Maureen February 17, 2013 um 7:29 pm

So, Greg, I understand that you have never polluted your eyes with the Canterbury Tales because it recycled so many characters, stories, gods and goddesses, and other ripoff material. You’ve also never enjoyed Romeo and Juliet, because that was a ripoff, or Hamlet, because that was a reuse, or Midsummer Night’s Dream, because Theseus should never have gotten out of his own story. King Arthur and his knights, Robin Hood and his merry men, Achilles and Odysseus — just crappy recycled characters and situations in lousy fanfic.

Alas for you, for you do not realize that civilizations are built upon epics that are nothing but retold stories, adaptations, and poetic fanfics….

Adam February 18, 2013 um 1:21 am

The character is not under copyright, just some stories.
There are plenty of great Sherlock stories written in the last 20 – 30 years, and quite a few are better than the originals – especially stuff written by Mike Stackpole and the new BBC Sherlock series which does greatly improve upon each story they adapt.

Greg M. February 18, 2013 um 5:57 pm

There is old saying that there are only seven plots in the world and every new story uses one. I think that’s true, more or less, but it’s different from reusing, remixing, rebooting, and rerunning characters through an ad infinitum series of stories.

For example, the newest Die Hard movie is a box office success in dollars, but, according to a reviewer, it’s been mightily deluded from the freshness of the original. But it will probably make enough money to produce Die Hard 7. And sooner or later, the lack of imagination and an aging star will cause someone to remake or reboot the Die Hard franchise anew. Wouldn’t it be better to move on? Or do you want a Red Dwarfish culture where the 18th remake is the definitive version?

I do think it’s time to cease reproducing Holmes and move on. Let the old Doyle stories stand. If that makes me a pretentious snob, so be it.

Ben H February 18, 2013 um 10:31 pm

Here is the problem with this sort of assessment. You are clearly being forced to watch these sort of remakes. I mean, why else would someone care that Die Hard, Red Dwarf, or any other number of series keeps getting remade. We need to find who is holding the gun to your head and send him to jail. Then you are free to make the choices about what you want to watch!

This week, 10 movies were released. If you don’t like the idea of a remake, why be bothered by it?

To answer your question of, "Wouldn’t it be better to move on?"

The answer is no. The movie is going to result in tons of actors, actresses, writers, directors, producers, film crew, advertising specialists, film critics, ushers, popcorn vendors, and thousands of other jobs that were involved in bring the movie to the public, getting paid this weekend. The public’s thirst for good original storytelling cannot and will not be quenched if every writer devoted themselves only to original storytelling because their would exist a crowd who would only sit at home and re-watch/re-read the stuff they like.

This pompous attitude against remakes is childish. If you believe that the money spent on making a movie like Die Hard would be better spent on various independent, original stories, chances are you would support communism because you’re obviously against free thinking since you cannot abide by the people who would prefer this sort of material.

Move on if you don’t care for it.

Greg M. February 18, 2013 um 11:46 pm

So criticism of the endless parade remakes, retreads, and reboots is communistic? Straw Man there. Nobody’s will stop you from enjoying 10,000 Sherlock Holmes stories by a thousand different authors if that is what truly floats your boat, but you have to allow for different opinions where there is free thought. Don’t expect silence.

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Puzzled February 24, 2013 um 7:22 am

The real question is: does the Estate think that it holds copyright over the phrase:

No S#!@, Sherlock!

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