July 24, 2014

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Wyche Inside IP
By Troy A. Tessier

There are a total of 60 Sherlock Holmes stories or novels published by Arthur Conan Doyle between 1887 and 1927.  Of those, only ten stories remain protected by copyright – the copyrights in all the others have expired.

Leslie Klinger wanted to create an anthology of stories inspired by Sherlock Holmes and Dr. Watson.  When the Estate of Conan Doyle claimed a license was needed to create stories about these two characters, Klinger sought a declaratory judgment that he was free to copy the Holmes and Watson characters as they are depicted in stories and novels in the public domain, without use of any original material from the characters as they appear in those works still under copyright protection.

The Estate argued that the Holmes and Watson characters are “complex,” and their full development did not occur until all of the stories were written.  Thus, argued the Estate, earlier versions of the characters do not fall in the public domain until they are fully and finally “complexified”  throughout the works.  In other words, the Estate claimed copyright protection for a character should extend until the copyright expiration date of the last work in which that character was developed by the author, effectively extending the copyright life of a character until 95 years after the last published work in which that character is depicted by the author.

In Klinger v. Conan Doyle Estate, Ltd., No. 14-1128 (June 16, 2014), an opinion authored by Judge Posner, the Seventh Circuit rejected the Estate’s argument.  If a character or any other copyrightable part of a protected work falls into the public domain, it is fair game for use by others, even if the original author of that character is continuing to develop his or her character in other, more recent and still protected works.  The Estate has asked the U.S. Supreme Court to intervene and prevent the publication of Klinger’s book pending a decision on whether to accept an appeal of the Seventh Circuit’s opinion.  Stay tuned.