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Free Sherlock Holmes: the Copyright Battle of Baker Street

Sherlock Holmes faces his greatest challenge – since his fight to the death with Professor James Moriarty at Reichenbach Falls. Who owns Sherlock Holmes, the world’s greatest detective? Is it the estate…

Some 95 years after the last Sherlock Holmes story was published, several parties are locked in a landmark US litigation case. Flickr/Tom Margie

Sherlock Holmes faces his greatest challenge – since his fight to the death with Professor James Moriarty at Reichenbach Falls.

Who owns Sherlock Holmes, the world’s greatest detective? Is it the estate of Sir Arthur Conan Doyle? Or the mysterious socialite Andrea Plunket? Or does Sherlock Holmes belong to the public?

This is the question currently being debated in copyright litigation in the United States courts, raising larger questions about copyright law and the public domain, the ownership of literary characters, and the role of sequels, adaptations, and mash-ups.

Sherlock Holmes is a fictional detective first created by Conan Doyle for the 1887 novel A Study in Scarlet. Conan Doyle went onto publish a total of four novels and 56 Sherlock Holmes stories. And the Sherlock Holmes canon includes characters such as Dr John Watson, the Scotland Yard inspector Lestrade, Irene Adler, and Professor James Moriarty, the deviously evil and unhinged academic.

Such is his popularity, Sherlock Holmes has been the subject of a number of sequels, adaptations, and imitations. And there has been a revival of Sherlock Holmes in modern times.

There’s the BBC series Sherlock, starring Benedict Cumberbatch and Martin Freeman. There’s also a rival series called Elementary - set in the United States, featuring Lucy Liu as Dr Joan Watson. There’s even been a dispute between the two series.

And there’s that rip-roaring movie franchise about Sherlock Holmes, directed by Guy Ritchie, starring Robert Downey Junior, with Jude Law as his trusty assistant, Dr Watson.

Sherlock, the BBC version.

Scholars Megan Richardson and David Tan have observed that, for a long time, sequels to Sherlock Holmes were tolerated by the author and his estate. But there’s also been concern with how the estate of Sir Arthur Conan Doyle has sought to manage the ownership and licensing of intellectual property rights associated with Sherlock Holmes.

And this boiled over in 2013, with copyright litigation between an editor and the estate of Conan Doyle.

The case to Free Sherlock

In February 2013, Leslie Klinger – an author, editor, and Sherlock Holmes expert – brought legal action against the estate of Sir Arthur Conan Doyle in the United States District Court for the Northern District of Illinois.

Klinger sought a declaration that the characters of Sherlock Holmes and Dr Watson are no longer protected by copyright law. He wanted to ensure creative artists would be free to create new stories about Holmes, Watson, and other characters, without paying license fees to the current owners of the remaining copyrights.

Klinger and Laurie R. King had edited the 2011 collection, “A Study in Sherlock: Stories Inspired by the Sherlock Holmes Canon”, which featured new stories written by Lee Child, Neil Gaiman, Margaret Maron, and other writers.

Klinger and King had been co-editing a new book called “In the Company of Sherlock Holmes", to be published by Pegasus Books, which featured stories by major mystery, sci-fiction, and fantasy authors. According to Klinger, the estate contacted Pegasus and implied that if they weren’t paid a license fee, they’d convince the major distributors not to sell the book.

Klinger refused to be dissuaded. “I’m asking the Court to put a permanent stop to this kind of bullying."

“It is true that some of Conan Doyle’s stories about Holmes are still protected by the US copyright laws. However, the vast majority of the stories that Conan Doyle wrote are not,” Klinger said.

“The characters of Holmes, Watson, and others are fully established in those 50 "public-domain” stories. Under US law, this should mean that anyone is free to create new stories about Holmes and Watson."

Klinger noted that the ten remaining stories still in copyright will be in the public domain after 2022, 95 years after the last one was published.

In other jurisdictions, such as the United Kingdom and Australia, the copyright in the works of Sherlock Holmes had expired, and the stories had fallen into the public domain.

Sherlock Holmes: A Game of Shadows

Defending their turf

The Conan Doyle estate has sought to defend the copyright not only in respect of the stories, but also the characters in the stories.

The estate has argued that there should be independent copyright protection for Conan Doyle’s characters. The estate noted: “No court has yet addressed this issue in the context of a literary character continuously created in a corpus of works.” The state submitted that “A sufficiently distinct fictional character is recognised as an independent work of authorship with its own copyright”.

The estate argued that Sherlock Holmes is not a mere two-dimensional character and wrote that “highly creative fictional characters and works are at the core of copyright’s subject matter and are entitled to strong protection”.

But other regimes of intellectual property could be better suited to the protection of characters.

In the United States, publicity rights have been employed to protect character merchandising. In Australia, passing off has been used to protect Homer Simpson and his favourite beer, Duff Beer. Trademarks are sometimes employed to provide protection for distinctive characters.

The US Sherlock Holmes spin-off, Elementary.

To further muddy the legal waters, a Hungarian-born socialite Andrea Plunket has laid a contentious claim to the copyright of ten stories of Sir Arthur Conan Doyle, and trademarks associated with Sherlock Holmes. She is threatening to block the BBC from using Holmes in any further programs airing in the US, claiming they do not have permission to use her trademarks. “I love Guy Ritchie, but I am not enamoured of the BBC,” she explained.

Remaining in the public domain

Hopefully, the copyright Battle of Baker Street may lay some of these issues to rest. The Estate of Sir Arthur Conan Doyle should not be able to unnaturally extend the life of copyright through its creative claims in respect of the canonical characters. Similarly, Andrea Plunket should not be able to block the appearance of works about Sherlock Holmes in the United States.

Sherlock Holmes and his companions should be in the public domain, free for all to use. As Leslie Klinger comments: “Holmes and Watson belong to the world, not to some distant relatives of Arthur Conan Doyle.” It’s elementary.

Since publication, this story has been amended to correct the spelling of Andrea Plunket.

Join the conversation

20 Comments sorted by

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  1. George Michaelson

    Person

    I find myself caught on the horns of a dilemma. The copyright regime here makes this a laughable discussion of 'other peoples problems' because the works are out of copyright here, and there is little or no basis for concern in these lawsuits: We could make porno films about watson and holmes till the cows come home and only have to satisfy the censor, not the IPR lawyers.

    (nothing you say above suggests otherwise)

    However, I am all to well aware that stupid, nationalistic IPR law means there are digital works I cannot buy here, because the 90 day import rule we successfully negotiated as a right for Australian consumers doesn't apply to digital IPR. So although I can buy works on paper from amazon.co.uk and pay for shipping, I cannot pay the IPR holder in the UK the UK licence, and import into australia.

    I suspect I really do want worldwide flat IPR. But if the cost is that we have to acquire disney-law and fantasy lawsuits over who retains control over Holmes and Watson...

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  2. Stephen H

    In a contemplative fashion...

    Intellectual property law is past its use-by date. The US Constitution states that it is "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". How is "life plus seventy years" an encouragement to authors and inventors? How is extending copyright every time Mickey Mouse is about to fall out of protection legal? How is copyright protection of Martin Luther's "I have a dream" speech even reflective of his dream?

    Legislators have forgotten or ignored the purpose of copyright and patent protections, and in the process the general population has often ignored these "protections". There are other ways, that better reflect the public good, of protecting inventions and creative outputs.

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  3. Caroline Webb

    Senior Lecturer

    I'm disappointed that this article doesn't actually tell me what the legal basis is of the claims made either by the estate or by Andrea Plunkett (who?) under either US or Australian law. As I understand it current Australian copyright law as it applies to written works focuses on the date of the author's death. Would this be affected by a change to copyright the character, i.e. do we use other things than the death of an author to identify copyright? (What about images?)

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    1. Dick Elberse

      logged in via LinkedIn

      In reply to Caroline Webb

      Caroline, the legal basis is explained to some extent in the referred article in the Daily Mail. Apparently there is a chain of title going back to a US producer. It will make an interesting case for copyright lawyers ;-).

      SInce this case is about a (possible) infringement in the US, it will be US law that will be looked at and I know that it can get very complicated.

      Here in the Netherlands and I would expect elsewhere in the EU trademarking a character to effectively prolong the copyright is not honored by the courts, as far as I know.

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    2. Caroline Webb

      Senior Lecturer

      In reply to Matthew Rimmer

      I did recognise that this was a US case--and don't consider not following every link in an article to be skim reading--but I recognise that in this case the information was in the links. Apologies.

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  4. Tyson Adams

    Scientist and author

    I re-blogged an interesting article that analysed the problem with copyright and availability of books/media to the public. It is very clear that copyright has some major downsides for the author, the estate and the public.
    http://tysonadams.com/2013/09/25/how-copyright-made-mid-century-books-vanish/

    My two cents: if the estate is no longer commissioning works and keeping the old works publicly available (including new formats, adaptations, etc) then they no longer own what should be a public work.

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  5. Matthew Rimmer

    ARC Future Fellow and Associate Professor in Intellectual Property at Australian National University

    A conversation starter - Should copyright subsist in literary characters? What do you think?

    In its submission, the estate for Sir Arthur Conan Doyle argues that copyright should subsist in characters, drawing reference to Tarzan, Rocky, James Bond, Scarlett O'Hara, Holden Caulfield, and Disney characters:

    "Fictional characters who are distinctly delineated have long been recognized as having their own copyright. Nichols v. Universal Pictures Corp., 45 F.2d 119 (1930) (Learned Hand, J.) (holding…

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    1. Barbara Piper

      logged in via Facebook

      In reply to Matthew Rimmer

      Mathew: You write "The Estate of Sir Arthur Conan Doyle should not be able to unnaturally extend the life of copyright through its creative claims in respect of the canonical characters. "

      It has not been my understanding that the Estate has tried to extend the life of copyright, but has instead acknowledged that the U.S. copyright protections of all of the Sherlock Holmes stories written by Arthur Conan Doyle will expire in several years. While the Estate certainly has acted to extend the scope…

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    2. Matthew Rimmer

      ARC Future Fellow and Associate Professor in Intellectual Property at Australian National University

      In reply to Barbara Piper

      Thanks Barbara for this thoughtful, nuanced, and intelligent response. I would submit that the estate's claims are unnatural in two ways.

      First, I am concerned about the estate claiming copyright in characters - as distinct from literary works. That seems to me to be a distortion of what should be protected under copyright law, as a copyright historian and scholar. There seems to be a slippage in what is protected from works to sub-components of works.

      Second, I worry about the estate maintaining…

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    3. Barbara Piper

      logged in via Facebook

      In reply to Matthew Rimmer

      Matthew: I agree completely with the philosophical issues you raise; my point had to do with actual copyright law and precedent in the U.S. rather than the more pleasant -- and reasonable -- vision of copyright that we can certainly agree would be preferable.

      We agree that the copyright of characters is a distortion of the intention of copyright, yet there are numerous examples of character copyright. That's the reality that the court must deal with in this case.

      Similarly, we agree that the…

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    4. Chris Kamen

      Filmmaker & Baby Lawyer

      In reply to Matthew Rimmer

      I'm writing a paper on this topic at the moment and my opinion is changing on an hourly basis! So please bare with me...

      But going back to basics, I think a character should be protected by copyright only insofar as the character is a central and "significant part" of the literary or dramatic work.

      And in keeping with the underlying philosophies of Copyright Law, the test for what is a "significant part" should be very strict so as not to risk overprotection of characters. Samuel Coe, in…

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    5. Matthew Rimmer

      ARC Future Fellow and Associate Professor in Intellectual Property at Australian National University

      In reply to Chris Kamen

      This has been a highly perceptive and thoughtful thread of commentary. Much thanks for these strong contributions, Barbara Piper and Chris Kamen.

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  6. Matthew Rimmer

    ARC Future Fellow and Associate Professor in Intellectual Property at Australian National University

    The estate of Sir Arthur Conan Doyle highlights there are precedents for literary characters being developed in a series of works: http://freesherlock.files.wordpress.com/2013/09/acd-statement-of-addl-material-facts.pdf

    "A serious literary character continues to be formed and takes on further attributes and dimensions through every story about that character. In addition to Sherlock Holmes, many other significant literary characters have been developed by their authors over a series of works…

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  7. Matthew Rimmer

    ARC Future Fellow and Associate Professor in Intellectual Property at Australian National University

    The Sherlockian is sceptical of Andrea Plunket's claims: http://www.sherlockian.net/acd/copyright.html

    'A web site for "the Sir Arthur Conan Doyle Literary Estate" represents Andrea Plunket, the former wife of Sheldon Reynolds, producer of the 1954 television series starring Ronald Howard as Holmes. Reynolds controlled the copyrights in the 1950s. Plunket is proprietor of a guest house in Livingston Manor, New York. Her claims to rights in the Sherlock Holmes stories have been repeatedly rejected in U.S. federal court decisions (including Plunket v. Doyle, No. 99-11006, Southern District of New York, February 22, 2001; Pannonia Farms Inc. v. ReMax International and Jon Lellenberg, No. 01-1697, District of Columbia, March 21, 2005). She has also filed a claim to the name "Sherlock Holmes" as a United States trademark, and that too has been turned down.'

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  8. Matthew Rimmer

    ARC Future Fellow and Associate Professor in Intellectual Property at Australian National University

    The case of Sherlock Holmes highlights larger controversies over the duration of copyright protection.

    In international trade talks, there has been much debate over copyright term. Copyright industries have been pushing for a copyright term extension in the Trans-Pacific Partnership.

    Krista Cox from Knowledge Ecology International has commented upon this problem: http://www.keionline.org/node/1802 She observed:

    "The U.S. proposal on copyright terms mirrors the current terms in the U.S. (which…

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