Is Sherlock Holmes truly a free man? Not so fast say attorneys for the estate of Sir Arthur Conan Doyle.
In a December 23 decision, an Illinois federal court held that Holmes and other characters and story elements in more than 50 Sherlock Holmes stories are in the public domain. But attorneys for the estate of Sir Arthur Conan Doyle this week insisted that the complete characters of Holmes and Watson won’t be freed until the final 10 stories published after 1922 enter the public domain, in 2022.
In the case, the Conan Doyle Estate presented what Judge Ruben Castillo called a “novel argument,” essentially that the Holmes and Watson characters were not completed until the last of Conan Doyle’s stories was published in 1922. However, the court did not rule on Allison’s argument. Because plaintiff Leslie Klinger did not seek a “judicial determination of the copyright status of the Sherlock Holmes character,” the court did not address the issue.
For Conan Doyle Estate lawyer Benjamin Allison, who said the estate was exploring an appeal of Castillo’s decision, that non-finding may be as good as a win. After all, absent legal certainty on the status of Holmes’ full character, is it not more likely that potential creators would seek a license, rather than risk litigation, if they are at all unclear about whether theirs is a use of a "completed" character?
“While plaintiff Leslie Klinger sought a ruling that some of these character traits were free for all to use,” Allison said, “the Court rejected Mr. Klinger's effort in this regard and held that all such characteristics of Holmes and Watson are protected.”
Klinger however, called Allison’s statement “a great attempt at spinning by the Estate,” after having lost on their theory of an “incomplete” character.
“The Court carefully said that it was not determining that the character was either in or out of copyright protection,” Klinger explained to PW. "Instead, the Court said that elements were free of protection.”
But Klinger noted that the remaining copyrightable character elements in the 10 remaining copyright-protected stories were "so insignificant as to be meaningless,” and he even offered a list of such "wholly free" elements in a court filing.
In his statement, Allison, also insisted that the Conan Doyle Estate’s trademark rights in the Sherlock Holmes name and image remained unaffected—a point that puzzled Klinger.
“There is a very good reason why the Estate did not assert trademark protection: The Estate does not own any trademarks," Klinger told PW. “They have applied for them, and there will be substantial opposition."
The federal suit was brought in early 2013 by author and scholar Leslie Klinger. Klinger (who is also an attorney) told PW that the suit 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.
In a declarative judgment, judge Ruben Castillo held that for all but a few remaining stories, the “public may use the pre-1923 story elements without seeking a license.”
Klinger says that ruling means that based on the more than 50 public domain stories, "creators are free to use the characters of Holmes and Watson without licensing them from the Conan Doyle Estate." He also noted, however, that the Court "cautioned that new stories about [Holmes and Watson] can't use elements that appear exclusively in the ten post-1922 stories by Conan Doyle."