Free Sherlock Holmes: the Copyright Battle of Baker Street – by Matthew Rimmer

October 25, 2013

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"The Adventures of Sherlock Holmes" opening image

photo credit: twm1340 via Flickr cc

Where do literary characters stand when it comes to copyright law? The ownership of Sherlock Holmes, the fictional detective created by Conan Doyle, is currently the subject of an ongoing legal battle in the US Courts. In the following article (originally published by The Conversation), ARC Future Fellow and Associate Professor in Intellectual Property, Matthew Rimmer, explains why it is that Sherlock Holmes and his companions belong in the public domain.

Sherlock Holmes faces his greatest challenge – since his fight to the death with Professor James Moriarty at Reichenbach Falls.

Who owns Sherlock Holmes, the world’s greatest detective? Is it the estate of Sir Arthur Conan Doyle? Or the mysterious socialite Andrea Plunket? Or does Sherlock Holmes belong to the public?

This is the question currently being debated in copyright litigation in the United States courts, raising larger questions about copyright law and the public domain, the ownership of literary characters, and the role of sequels, adaptations, and mash-ups.

Sherlock Holmes is a fictional detective first created by Conan Doyle for the 1887 novel A Study in Scarlet. Conan Doyle went onto publish a total of four novels and 56 Sherlock Holmes stories. And the Sherlock Holmes canon includes characters such as Dr John Watson, the Scotland Yard inspector Lestrade, Irene Adler, and Professor James Moriarty, the deviously evil and unhinged academic.

Such is his popularity, Sherlock Holmes has been the subject of a number of sequels, adaptations, and imitations. And there has been a revival of Sherlock Holmes in modern times.

There’s the BBC series Sherlock, starring Benedict Cumberbatch and Martin Freeman. There’s also a rival series called Elementary – set in the United States, featuring Lucy Liu as Dr Joan Watson. There’s even been a dispute between the two series.

And there’s that rip-roaring movie franchise about Sherlock Holmes, directed by Guy Ritchie, starring Robert Downey Junior, with Jude Law as his trusty assistant, Dr Watson.

Scholars Megan Richardson and David Tan have observed that, for a long time, sequels to Sherlock Holmes were tolerated by the author and his estate. But there’s also been concern with how the estate of Sir Arthur Conan Doyle has sought to manage the ownership and licensing of intellectual property rights associated with Sherlock Holmes.

And this boiled over in 2013, with copyright litigation between an editor and the estate of Conan Doyle.

The case to Free Sherlock

In February 2013, Leslie Klinger – an author, editor, and Sherlock Holmes expert – brought legal action against the estate of Sir Arthur Conan Doyle in the United States District Court for the Northern District of Illinois.

Klinger sought a declaration that the characters of Sherlock Holmes and Dr Watson are no longer protected by copyright law. He wanted to ensure creative artists would be free to create new stories about Holmes, Watson, and other characters, without paying license fees to the current owners of the remaining copyrights.

Klinger and Laurie R. King had edited the 2011 collection, “A Study in Sherlock: Stories Inspired by the Sherlock Holmes Canon”, which featured new stories written by Lee Child, Neil Gaiman, Margaret Maron, and other writers.

Klinger and King had been co-editing a new book called “In the Company of Sherlock Holmes”, to be published by Pegasus Books, which featured stories by major mystery, sci-fiction, and fantasy authors. According to Klinger, the estate contacted Pegasus and implied that if they weren’t paid a license fee, they’d convince the major distributors not to sell the book.

Klinger refused to be dissuaded. “I’m asking the Court to put a permanent stop to this kind of bullying.”

“It is true that some of Conan Doyle’s stories about Holmes are still protected by the US copyright laws. However, the vast majority of the stories that Conan Doyle wrote are not,” Klinger said.

“The characters of Holmes, Watson, and others are fully established in those 50 “public-domain” stories. Under US law, this should mean that anyone is free to create new stories about Holmes and Watson.”

Klinger noted that the ten remaining stories still in copyright will be in the public domain after 2022, 95 years after the last one was published.

In other jurisdictions, such as the United Kingdom and Australia, the copyright in the works of Sherlock Holmes had expired, and the stories had fallen into the public domain.

Defending their turf

The Conan Doyle estate has sought to defend the copyright not only in respect of the stories, but also the characters in the stories.

The estate has argued that there should be independent copyright protection for Conan Doyle’s characters. The estate noted: “No court has yet addressed this issue in the context of a literary character continuously created in a corpus of works.” The state submitted that “A sufficiently distinct fictional character is recognised as an independent work of authorship with its own copyright”.

The estate argued that Sherlock Holmes is not a mere two-dimensional character and wrote that “highly creative fictional characters and works are at the core of copyright’s subject matter and are entitled to strong protection”.

But other regimes of intellectual property could be better suited to the protection of characters.

In the United States, publicity rights have been employed to protect character merchandising. In Australia, passing off has been used to protect Homer Simpson and his favourite beer, Duff Beer. Trademarks are sometimes employed to provide protection for distinctive characters.

To further muddy the legal waters, a Hungarian-born socialite Andrea Plunket has laid a contentious claim to the copyright of ten stories of Sir Arthur Conan Doyle, and trademarks associated with Sherlock Holmes. She is threatening to block the BBC from using Holmes in any further programs airing in the US, claiming they do not have permission to use her trademarks. “I love Guy Ritchie, but I am not enamoured of the BBC,” she explained.

Remaining in the public domain

Hopefully, the copyright Battle of Baker Street may lay some of these issues to rest. The Estate of Sir Arthur Conan Doyle should not be able to unnaturally extend the life of copyright through its creative claims in respect of the canonical characters. Similarly, Andrea Plunket should not be able to block the appearance of works about Sherlock Holmes in the United States.

Sherlock Holmes and his companions should be in the public domain, free for all to use. As Leslie Klinger comments: “Holmes and Watson belong to the world, not to some distant relatives of Arthur Conan Doyle.” It’s elementary.

Since publication, this story has been amended to correct the spelling of Andrea Plunket.

Dr Matthew Rimmer is an Australian Research Council Future Fellow, working on Intellectual Property and Climate Change. He is an associate professor at the ANU College of Law, and an associate director of the Australian Centre for Intellectual Property. Matthew Rimmer is currently an Australian Research Council Future Fellow working on a project entitled “Intellectual Property and Climate Change: Inventing Clean Technologies”.

The Conversation

This article was originally published at The Conversation.
Read the original article.

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