Sherlock Holmes and the Case of the Public Domain

Here’s some
mostly good news in the world of intellectual property law:

A federal judge has issued a declarative
judgment stating that Holmes, Watson, 221B Baker Street, the
dastardly Professor Moriarty and other elements included in the 50
Holmes works that Arthur Conan Doyle published before Jan. 1, 1923,
are no longer covered by United States copyright law, and can
therefore be freely used by others without paying any licensing fee
to the writer’s estate.

The ruling came in response to a
civil complaint filed in February by Leslie S. Klinger, the editor
of the three-volume, nearly 3,000-page “New Annotated Sherlock
Holmes” and a number of other Holmes-related books. The complaint
stemmed from “In the Company of Sherlock Holmes,” a collection of
new Holmes stories written by different authors and edited by Mr.
Klinger and Laurie R. King, herself the author of a mystery series
featuring Mary Russell, Holmes’s wife.

Mr. Klinger and Ms. King had paid a $5,000 licensing fee for a
previous Holmes-inspired collection. But in the complaint, Mr.
Klinger said that the publisher of “In the Company of Sherlock
Holmes,” Pegasus Books, had declined to go forward after receiving
a letter from the Conan Doyle Estate Ltd., a business entity
organized in Britain, suggesting that the estate would prevent the
new book from being sold by Amazon, Barnes & Noble and “similar
retailers” unless it received another fee.

I call this mostly good news because the judge sided
with the Doyle estate when it came to elements of the Holmes mythos
introduced after 1923. Those are still under copyright protection
in the U.S., so if you want to publish a story that mentions, say,
Dr. Watson’s career as a rugby player, you still need to pay a fee
to Doyle’s heirs.

The court’s decision, which you can read
here, discusses such topics as a precedent set by Amos ‘n’
Andy and whether Watson’s second marriage is a copyrightable
“characteristic” or a non-copyrightable “event.” If you enjoy the
territory where legal and literary exegesis collide, you should
read it.

When I last wrote about
this case, I posed some questions to Reason readers.
Now that the judge has released his ruling, I’ll offer them
again:

Posts like this tend to set off
debates in the comments about whether copyright laws should exist
at all, but let’s assume, for the sake of argument, that they
should. Can anyone give me a good reason for applying copyright to
a character, as opposed to a story about that character?
It shouldn’t be difficult for the fans of, say, Star Wars
to tell which stories about Han Solo have George Lucas’ input or
blessing and which ones do not. Why shouldn’t you have the legal
right to circulate your own Han Solo films or novels on more than a
semi-clandestine
amateur basis without asking permission first, competing head
to head with Disney to see who can tell the better stories about
the characters and settings that Lucas invented? I can see why
Disney’s shareholders wouldn’t like that, but why should their
preferences be law?

And suppose we agree that characters should be copyrightable. Why
on Earth should intellectual property law protect particular
characteristics of a public-domain character? Does it really make
sense to have a legal regime in which anyone can write a story
about Sherlock Holmes but you need to pay tribute to Arthur Conan
Doyle’s heirs if you allude to the
wrong elements of the canon?

Bonus link: “Ripping,
Mixing, and Burning Arthur Conan Doyle.”