Good news for those of you who have been longing to shop your Jane Austen/Sherlock Holmes mashup you've got in a drawer to book publishers: The Seventh Circuit has now ruled that the character of Sherlock Holmes is (mostly) in the public domain.
The court issued the opinion in a dispute between the Arthur Conan Doyle estate and one Mr. Leslie Klinger. Klinger had already edited one anthology of stories inspired by the Conan Doyle characters, and his first publisher paid a licensing fee to the estate. When Klinger sold a second anthology to Pegasus Books, however, he balked at the idea of paying for a license. Copyright on all but ten of the Holmes stories had already expired; since none of the stories in his projected anthology would copy elements from those last ten Conan Doyle stories, he didn't see that he had to.
The estate disagreed, and sent a letter to Pegasus threatening to interfere with booksellers unless a license fee was paid. So Klinger went off to get a declaratory judgement, which a lower court granted him. The estate appealed. Their argument goes that because Conan Doyle gradually fleshed out his characters over the course of all the Holmes stories, their copyright on the character extended until the last story entered the public. They explained that Holmes was a "round" character who was not fleshed out until the very last story.
Judge Posner, writing for the Seventh Circuit, did not buy this lit-crit approach to copyright, which he noted was basically just a veil for the Conan Doyle estate's hope of achieving almost 135 years of full copyright protection, far beyond the (already insanely long) term protected in the Copyright Act.
And cutely, he went a little full-nerd in explaining why. Witness:
Repeatedly at the oral argument the estate's lawyer dramatized the concept of a "round" character by describing large circles with his arms. And the additional details about Holmes and Watson in the ten late stories do indeed make for a more "rounded," in the sense of a fuller, portrayal of these characters. In much the same way we learn things about Sir John Falstaff in Henry IV, Part 2, in Henry V (though he doesn't actually appear in that play but is merely discussed in it), and in The Merry Wives of Windsor, that were not remarked in his first appearance, in Henry IV, Part 1. Notice also that Henry V, in which Falstaff is reported as dying, precedes The Merry Wives, in which he is very much alive. Likewise the ten last Sherlock Holmes stories all are set before 1914, which was the last year in which the other stories were set. One of the ten, The Adventure of the Veiled Lodger (published in 1927), is set in 1896. See 2 William S. Baring-Gould, The Annotated Sherlock Holmes 453 (1967). Thus a more rounded Holmes or Watson (or Falstaff) is found in a later work depicting a younger person. We don't see how that can justify extending the expired copyright on the flatter character. A contemporary example is the six Star Wars movies: Episodes IV, V, and VI were produced before I, II, and III. The Doyle estate would presumably argue that the copyrights on the characters as portrayed in IV, V, and VI will not expire until the copyrights on I, II, and III expire.
You should mark this down as possibly the first time in the history of this country that the specter of Jar-Jar Binks was invoked in the name of all that is good, holy, and in favor of limited terms for copyright.
[Image via British Library.]