Sherlock Free after Appeal!

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A few months ago, OTW’s Legal Committee advised fans of some promising results in a case involving copyright on Sherlock Holmes stories: a U.S. Federal District Court had held that because copyright had expired on all but ten of the stories in Arthur Conan Doyle’s Sherlock Holmes canon, all elements of the Holmes canon that were first introduced before 1923 — including the characters of Holmes and Watson as they existed pre-1923 — were in the public domain. After that post, The Conan Doyle Estate, Ltd. (or “CDE”), appealed the decision.

Now, the Seventh Circuit Court of Appeals has ruled in the case, and the appeals result is, if anything, even more favorable than the earlier opinion by the District Court. (There is still a fairly remote possibility that the CDE will attempt to take the case to the Supreme Court, although it is unlikely that the Supreme Court would have any interest in taking the case.) The upshot is that, as a matter of copyright law, everything that originated in the first 50 stories and novels of Arthur Conan Doyle’s Sherlock Holmes Canon is entirely copyright-free. Only “original elements” from Conan Doyle’s last 10 stories remain protected in the U.S. through 2022. (Everywhere else in the world, copyright has expired in those stories, as well.) This means that since nearly everything we know about the characters of Holmes and Watson was set forth in the first 50 stories, for practical purposes, Conan Doyle’s Holmes and Watson are now “fair game” for creators.

The court explicitly recognized that extended copyright protection would chill creativity. As the judgment states:

“[E]xtending copyright protection is a two-edged sword from the standpoint of inducing creativity, as it would reduce the incentive of subsequent authors to create derivative works (such as new versions of popular fictional characters like Holmes and Watson) by shrinking the public domain…With the net effect on creativity of extending the copyright protection of literary characters to the extraordinary lengths urged by the estate so uncertain, and no legal grounds suggested for extending copyright protection beyond the limits fixed by Congress, the estate’s appeal borders on the quixotic.

The spectre of perpetual, or at least nearly perpetual, copyright (perpetual copyright would violate the copyright clause of the Constitution, Art. I, § 8, cl. 8, which authorizes copyright protection only for “limited Times”) looms, once one realizes that the Doyle estate is seeking 135 years (1887–2022) of copyright protection for the character of Sherlock Holmes as depicted in the first Sherlock Holmes story.”

What does this ruling mean for fans? First, since it makes clear that the original-recipe Holmes and Watson are in the public domain, it means that fans of the original Conan Doyle Canon will seldom have to wonder whether their Doyle Canon fanworks are fair use. Fair use remains important for Holmes fans, however, since U.S. copyright still protects not only the last 10 Conan Doyle stories, but also the sources for many Holmes fandoms, such as the Warner Brothers Holmes, Elementary, and BBC Sherlock. For these fans, fair use principles still protect their right to create fanworks.

The ruling will also make it more difficult for the CDE to restrict commercial adaptations of the canon, something that’s good for all fans of Holmes and Watson.

More importantly, however, this case represents a court’s acknowledgement of something that the OTW has been saying for a long time: that the law should encourage creation of works that build on preexisting works.

OTW Legal Chair Betsy Rosenblatt consulted on this case, and we extend our congratulations to her and to the legal team for the plaintiffs. As we stated after the initial judgment: “The case also has broader implications for U.S. copyright in serialized works. Many now-famous characters were introduced in series that started in the early 20th century, but continued for decades or more after then. This ruling establishes the principle that all of those characters have the public domain more quickly than some had originally thought.” So it’s possible that many more fandoms will be celebrating the public domain status of their canon in the future.

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