Sherlock Holmes and the Adventure of the Cert. Petition

"My dear Holmes," I said, eyeing the cert. petition warily. "What could this be? Hasn't the estate lost to Mr. Leslie Klinger already?"

"Correct, Watson," said Holmes. "There can be no doubt that the Estate of Arthur Conan Doyle, in an opinion by Mr. Posner, was thoroughly rebuffed. You'll recall, I hope, the facts of that matter."

"Was it not true that the original four novels and first 46 stories were no longer protected by copyright, but the final 10 were?"

The Episode of the Pre-Existing Story Elements

"Not quite," said Holmes, lighting his pipe. He paced back and forth as he spoke, jabbing his pipe into the air for emphasis, sending smoke swirling around his head. "It is also true that, even though the final 10 stories were published after 1923, the 'story elements,' as the good judge called them, had already lapsed into the public domain. I'm sure you can see where this is going, Watson."

"I'm afraid I haven't an idea," I said. "Though it must have something to do with the prior stories?"

"Quite so; by the time the final 10 stories were published, the characters -- you, me, Inspector Lestrade, the hound of the Baskervilles, and so forth -- we had all fallen into the public domain. Consequently, any works created thereafter were not protected by copyright, their story elements having already fallen into the public domain." Holmes turned to face the fireplace, deep in thought.

"Then the redoubtable Mr. Klinger should be able to publish his second Sherlock Holmes anthology, consisting of even more stories published both by Mr. Conan Doyle and based on the characters."

"Ah, but that's where you're wrong!" said Holmes, whipping around so fast I feared his robe would catch fire. "If the estate is correct, then, as their solicitor, the good John Bursch, of Grand Rapids, said, 'Anything that was new to the last 10 stories would be protected by copyright.'"

The Question for the Court

"But that sounds like they're just claiming there's uncertainty, not that there's any actual problem!" I said, in a bit of a huff. "Why, could a court not read the stories for itself and decide whether there were new story elements? Or have an expert testify to that fact?"

Holmes walked to his arm chair and sat down. "The very issue for the learned justices is whether Mr. Posner could have issued a ruling in the absence of a completed work by Mr. Klinger. The estate claims he should not have, as the works to be included in the anthology must be evaluated individually.

"Furthermore, Mr. Bursch makes the case that Mr. Posner's ruling creates problems for works based on 'many other beloved characters' like Winnie the Pooh or the Cat in the Hat."

"Cat in the what?" I exclaimed.

"I am similarly baffled," said Holmes. "But this will come down to how much the story elements changed in the 10 stories published after 1923. For example, I may have developed an affinity for dogs."

I guffawed so loudly it startled Holmes. "Quite droll, indeed! But are courts expected to become masters of literature, reading each work to ensure that characters have been sufficiently altered as to place them either within or without the protections of copyright? And how sufficiently must they change? This all seems fraught with trouble."

Holmes looked fixedly at the fireplace, abnormally silent for several seconds.

"Well?" I said, "aren't you going to say, 'Elementary'?"

"No, Watson. I've changed." He stood up and walked off, leaving me to ruminate on the wisdom of the Copyright Act.

Related Resources:

• 15 Years Ago, Congress Kept Mickey Mouse out of the Public Domain. Will They Do It Again? (The Washington Post)
• Is Sherlock Holmes in the Public Domain? (Slate)
• Sherlock Holmes and the Adventure of Copyright Protection (FindLaw's U.S. Seventh Circuit Blog)
• Sherlock Holmes and the Adventure of Quixotic Appeals, Attorney Fees (FindLaw's U.S. Seventh Circuit Blog)