Sherlock Holmes’ Latest Case Comes to an End

It is legal to publish stories about
Sherlock Holmes and Dr. Watson without the permission of their
creator’s estate, because those characters are in the public
domain. That’s what the Seventh Circuit
ruled in June, and it’s now clear that the judge’s
decision is going to stand: The U.S. Supreme Court
has declined
to hear an appeal filed by Sir Arthur Conan Doyle’s heirs.

As I
wrote when the Seventh Circuit ruling came down, this is

a welcome decision. The argument offered by Arthur
Conan Doyle’s estate rested on the fact that 10 Sherlock stories
were published after 1923 and therefore have not yet entered the
public domain. Because those stories introduced new elements to
Holmes’ and Watson’s fictional lives, the estate’s attorneys
claimed that the characters were not fully created until
after 1923 and therefore aren’t in the public domain after all. At
a time when copyright terms are constantly being
extended into the future, the estate was effectively attempting
to enact a stealth extension into the past.

It was an absurd argument, and Judge Richard Posner swatted it down
gracefully.

Absurd though its argument was, the Doyle estate had been
getting away for years with asking writers for fees they were not
actually legally obliged to pay. Indeed, this case began with the
Doyle estate telling Leslie
Klinger that he and his publisher had to cough up $5,000 for
the right to use Holmes and Watson in a book. Now the money will be
flowing in the opposite direction: In August, Judge Posner ordered
the estate to give Klinger $30,679.93—the amount he incurred in the
circuit-court stage of the legal fight. Klinger is also asking to
be compensated for the costs of an
earlier stage of the battle, before a lower court; if that
request is granted, Doyle’s heirs will be on the hook for another
$39,123.44.

I hope that happens. As Posner
wrote in August,

The Doyle estate’s business strategy is plain:
charge a modest license fee for which there is no legal basis, in
the hope that the “rational” writer or publisher asked for the fee
will pay it rather than incur a greater cost, in legal expenses, in
challenging the legality of the demand. The strategy had worked
with Random House; Pegasus was ready to knuckle under; only Klinger
(so far as we know) resisted. In effect he was a private attorney
general, combating a disreputable business practice—a form of
extortion—and he is seeking by the present motion not to obtain a
reward but merely to avoid a loss. He has performed a public
service—and with substantial risk to himself, for had he lost he
would have been out of pocket for the $69,803.37 in fees and costs
in-curred at the trial and appellate levels ($30,679.93 +
$39,123.44). The willingness of someone in Klinger’s position to
sue rather than pay Doyle’s estate a modest license fee is
important because it injects risk into the estate’s business model.
As a result of losing the suit, the estate has lost its claim to
own copyrights in characters in the Sherlock Holmes stories
published by Arthur Conan Doyle before 1923. For exposing the
estate’s unlawful business strategy, Klinger deserves a reward but
asks only to break even.