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Sherlock Holmes and the Adventure of Copyright Protection

By Gabriella Khorasanee, JD on June 26, 2014 | Last updated on March 21, 2019

The Seventh Circuit recently heard a case involving the works of Arthur Conan Doyle, better known as the creator of our favorite British detectives Sherlock Holmes and Dr. Watson, reports The Washington Post. The question before the court was whether copyright protection, which had already expired, can be extended because the author later "altered the character in a subsequent work."

As Judge Posner explains, it's all "elementary."

Works in the Public Domain

The public was introduced to Sherlock Holmes and Dr. Watson in 1887, when Arthur Conan Doyle wrote his first story depicting the characters. From that time, Doyle wrote a total of 56 stories and 4 novels using the Sherlock Holmes and Dr. Watson characters. All of his works, except 10 of them written between 1923 and 1927, are in the public domain ("pre-1923 works"). The remaining 10 are still protected by copyright until 2018 to 2022, depending on the original date of publication, pursuant to the Copyright Term Extension Act.

Declaratory Relief Sought

Leslie Klinger, an editor who compiled a canon of all of Doyle's 60 works, was in the process of editing a sequel to the canon that highlighted the works other authors who used the Sherlock Holmes characters in their writings. The Doyle estate implicitly threatened litigation, and warned Klinger that they would prevent the book from being sold. In response, Klinger sued for a declaratory judgment that he could use material in the pre-1923 works because it was in the public domain. The district court found for Klinger, and the estate appealed.

Seventh Circuit Analysis

On appeal, the estate argued that there was no injury, but Judge Posner writing for the Seventh Circuit, disagreed. He found that the implicit threat of litigation and threat of blocking sale of the book established actual controversies. Next, the estate argued that because the characters were altered in subsequent works still protected by copyright, the copyright protections should extend back to the materials in the original copyright. Judge Posner disagreed, finding no "basis in statute or case law for extending a copyright beyond its expiration." Instead, he held that "only original elements added in the later stories remain protected."

We're interested to see if this ruling will open the floodgates of Sherlock Holmes-inspired stories. For now, we're very content with the BBC's iteration of Sherlock.

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