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Sherlock Holmes and the Case of the Disappearing Copyright

Sherlock Holmes and his friends will remain in the public domain. EPA/ Andy Rain

Earlier this month, the US Supreme Court dismissed a plea from the Conan Doyle Estate, which was trying to stop the publication of a new book based on Sir Arthur Conan Doyle’s famous detective Sherlock Holmes.

The following excerpt is republished from the reminiscences of John H. Watson M.D., late of the Army Medical Department.*

The Adventure of the Copyrighted Detective

I came down late to breakfast, I shall admit slightly the worse for wear from the night before, to find my friend already breakfasting.

“Holmes! What a surprise. I’d not expected to find you here. Were you not engaged on some matter of the Gravest Urgency, a matter that would take you off to the continent for the remainder of the month? You gave to me think that we are perched on the very edge of war.”

The great detective looked up from a copy of The Times, and pushed idly at a piece of toast that lay untouched on his plate. “Watson, you overestimate the intelligence of the powers that plot against us. War is averted, with no more effort than it took to piece together the obvious connection between the disappearance of the Duke of Bedford’s nephew and the strangely masculine jawline of the Prime Minister’s newest scullerymaid.”

A Study in Scarlet from Beeton’s Christmas Annual. Wikimedia Commons

My friend sighed and rolled his eyes, his sight coming to rest longingly on a box on the mantel, one I knew contained not only a Webley revolver but a syringe and a seven percent solution of an infernal concoction with which the great man had wrestled for many years.

“I met the most interesting chap at my club last night,” I said, desperate to distract Holmes from his vices. I took a kipper from Mrs Hudson’s proffered chafing dish without so much as a thank you.

“Name escapes me: Hunt, Huntley or something. Dashed handsome cove. Turns out he is a lawyer of some stripe, something to do with intellectualism and property, and he told me the most fascinating story. Apparently there was a case a few weeks ago in Chicago, Illinois.”

“A case?” My friend’s ears perked up.

“Not that kind of case, Holmes, a legal case. It involved some stories by a chap called Conan Doyle, who wrote years and years ago about a detective who solves cases by sheer intellect alone, sometimes never venturing from his home.”

Holmes lit his meerschaum, and exhaled noisily towards the ceiling. “I vaguely recall the author. A hack.”

“Well, that’s as may be. This lawyer cove said that 50 of your so-called hack’s stories had fallen into the public domain, which apparently means that anyone can do what they like with them. He said something about copyright not being for ever, because this would stop the creation of new works.

"I didn’t quite catch his drift, but in any event he said that the owners of the copyright in the final ten stories – the estate of this author Doyle chap – were claiming that they had copyright over the detective character himself, so that no-one could do anything with the earlier stories even though they had been given to the public.”

Sherlock Holmes and Watson. Sidney Paget (1860-1908) – Strand Magazine. Wikimedia Commons

Holmes roused himself from his lassitude. “Impossible, my dear Watson. You may have forgotten that I wrote the entry on "Copyright” in the Encyclopedia Wiktanica: one only has copyright in the actual words of the book. Although of course the infringer doesn’t have to copy the precise words to fall foul of copyright; he can also infringe by taking the gist of the original work. But still, it’s only the work which is copyright, not the individual parts.“

"Holmes! I had no idea you were a copyright scholar as well as a consulting detective.”

“There is much you don’t know about me, John, but that can hardly be news to you or the readers of your somewhat sloppily written accounts of our adventures. Be that as it may, I can tell you that in all civilised countries only the actual works themselves are copyright.”

“Well, apparently not in America, according to this Huntard cove. Those feisty colonials have some tests that ask whether the fictional character is actually the story being told or is especially distinctive. And if so, then other people cannot even copy the character. You’re familiar with the "Tarzan” character?“

Illustration of ‘The Adventure of the Golden Pince-Nez’. Sidney Paget (1860 - 1908) - Strand Magazine. Wikimedia Commons

"Please John, you speak of simpleminded entertainments. These are distractions from important things, such as the categorisation of tobacco ash. What do I care of the works of Edgar Rice Burroughs and whether it is possible to make a Tarzan entertainment without paying royalties to a copyright troll?”

I noticed that his air of lassitude had left him, and his eyes, previously dull and bored, now blazed brightly. There was something in this strange story of copyright that intrigued him, far beyond the arid reasoning of the courts. He continued.

“The problem with the American approach is that an author could create perpetual copyright by the simple ploy of writing endless sequels. No-one could write a story about this detective character of Conan Doyle without infringing the copyright still extant in the remaining ten works.”

“Precisely, Holmes! That is what the judge in the American case said, and he said that this cannot be correct. He concluded that anyone may write about this detective, as long as they don’t copy the actual words of the last few books! Quite the outcome, don’t you think?”

At that moment Mrs Hudson came in, bearing a letter upon a tray. Holmes fell on it as though the want of it had lain on him like an illness. He glanced at the return address and his nostrils flared. He ripped it open, much as a kestrel opens a mouse for his dinner.

His eyes flashed across the words and before he had finished the first page he had risen and was reaching for his deerstalker and cape.

Holmes and Moriarty fighting over the Reichenbach Falls, by Sidney Paget. Wikimedia Commons

“What is it, Sherlock?” I cried.

“The game is afoot, my dear Watson! Get your belongings, for we travel today on matters of the Gravest Importance.”

“What‽ Is it War again?”

“No, much more serious: I have just been apprised of the fact that the estate of Conan Doyle has previously extracted hundreds of thousands of pounds from the makers of sundry recent amusements. It seems from this new case that the estate had no basis for doing so. We travel first to Southampton and then catch a steamer to New York tonight. We embark on the Case of the Missing Money!”

His words hung in the air like the promise of a spring day. As I rose to make ready, Holmes glanced over.

“And Watson?” he said.

“Yes Sherlock, what is it?” I asked breathlessly.

“Pack your pistol.”

* Only joking, in case you didn’t get it. What kind of detective are you anyway?

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