To author and scholar Leslie Klinger, it’s elementary: the characters of Sherlock Holmes and John H. Watson are solidly in the public domain, and should be free for creators to use in new works. But after recent efforts by the Arthur Conan Doyle Estate to extract license fees, Klinger (who is also a lawyer) filed suit in federal court last week against the estate, asking the court to declare that the famous characters of Holmes and Watson are no longer protected by federal copyright laws.
In a statement, Klinger says that the litigation became necessary after the Doyle estate attempted to extract a license fee for a new book he was co-editing, In the Company of Sherlock Holmes (Pegasus Books) with author Laurie R. King, the bestselling author of the "Mary Russell" series of mysteries that also feature Sherlock Holmes. “The Conan Doyle Estate contacted our publisher and implied that if the Estate wasn't paid a license fee, they'd convince the major distributors not to sell the book,” he stated. “Our publisher was, understandably, concerned, and told us that the book couldn't come out unless this was resolved.”
Klinger says he is aiming to put an end to such threats, for his own work, as well as for others.
“In practice, major creators, such as Warner Bros. and CBS, have found it more cost-effective to pay a license fee rather than to challenge the Estate’s position,” Klinger told PW. “Similarly, our previous publisher, Random House, believed that it was cheaper to pay than to fight. Fighting means legal fees and delays, antithetical to big businesses. But I believe that it’s time that someone takes this case to court.”
Klinger readily admits that roughly 10 of Conan Doyle’s Holmes stories remain under U.S. copyright protection. But roughly 50 other stories featuring the famous characters are in the public domain, and that is enough, he says, to firmly establish the famous characters as public domain as well.
The case is somewhat unusual, in that the Doyle estate has not sued for infringement—it has merely sought to use its standing as Doyle’s representative to extract license fees. “We are seeking a declaration that the characters are in the public domain,” Klinger says. “The Estate has not historically filed infringement suits, because, I believe, the Estate is concerned that the courts will find that the Estate has no such right. Instead, the Estate has relied on threats.” But that practice, Klinger says, amounts to unfair intimidation, thus Klinger’s proactive suit to free Sherlock Holmes.