In a somewhat rollicking opinion, replete with casual diction (contractions in a Circuit Court opinion?), literary allusions (not just to the Holmesian canon, but from Shakespeare to Star Wars to Cagliostro--not surprising, given Judge Posner's longstanding interest in law and literature), the Court found that the mere fact that the last few stories remained in copyright did not mean that the character as a whole did--only distinctive additions to the characters found in those last few stories (the opinion gave the examples, provided by the Estate, of Watson's second marriage and Holmes's softened attitude in old age toward dogs--those of us who remember the quick disappearance of Watson's "bull pup" in A Study in Scarlet can at last rest easy).
How did the case arise? Well, since I'm dying to cite the admirably subtitled Guardian article, "Sherlock lives in public domain, US court rules in case of the heckled brand" (really, that is just a marvelous title, guys!), let it tell the story:
A US court has ruled that Sherlock Holmes – along with 46 stories and four novels he’s appeared in – is in the public domain, reaffirming the expiration of the copyright once owned by the estate of Scottish writer Arthur Conan Doyle.The Court's reasoning strikes me as quite sound; the Estate acknowledged that, on their own, the vast bulk of the stories were in the public domain, having been published in the United States prior to 1923. It instead claimed that, because the Holmes and Watson of those stories were "flatter" and had not been fully developed until the last ten stories, the entire cumulative evolution of Holmes was protected.
The ruling by the seventh US circuit court of appeals in Chicago comes after the Doyle estate threatened to sue the editor of a book of original Holmes fiction if the author didn’t pay licensing fees.
Doyle’s estate contacted Leslie Klinger in 2011, when he was about to publish an anthology of original fiction starring Holmes, A Study in Sherlock: Stories Inspired by the Sherlock Holmes Canon. The estate demanded publisher Random House pay $5,000 in licensing fees for the use of the Holmes character.
Random House paid the fees, even though Klinger thought that the Holmes stories were in the public domain.
As Klinger was working on a sequel, In the Company of Sherlock Holmes, to be published by Pegasus Books and distributed by WW Norton & Company, the estate again threatened to sue Klinger and the publisher a licensing fee wasn’t paid.
“If you proceed instead to bring out Study in Sherlock II [the original title of In the Company of Sherlock Holmes] unlicensed, do not expect to see it offered for sale by Amazon, Barnes & Noble and similar retailers. We work with those compan[ies] routinely to weed out unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate to do so with your book as well,” wrote Doyle’s estate.
This time, Klinger sued.
He said he wasn’t infringing on the 10 Holmes stories that remained under 95-year copyright protection….
Judge Posner responded with a double-barreled answer. First, he pointed out that nothing in law distinguished between "flatter" and "rounder" characters, and that, if the early Holmes and Watson were so flat as to be lacking in distinctiveness, why, then, they couldn't be protected. (A nice example of Morton's Fork, no?). Second, copyright is meant to be for a limited time; the Estate's reasoning would have the effect that:
The spectre of perpetual, or at least nearly perpetual (perpetual copyright would violate the copyright clause of the Constitution, Art. I, S 8, cl. 8, which authorizes copyright protection for only "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.(Opinion at 15)
Along the way, the Court concluded that the Estate had not demonstrated that Klinger's collection would redound to the detriment of the originals, and even if they did, burlesque and parody can be protected fair use; in any event, the Court wrote, "it appears that the Doyle estate is concerned not with specific alterations in the depiction of Holmes or Watson in Holmes-Watson stories written by authors other than Arthur Conan Doyle, but with any such story that is published without payment to the estate of a licensing fee.” (Opinion at 14; emphasis in original)
As a writer who is playing with works in the public domain, I hope that I am adding something by reviving these characters--looking at them through a new century's eyes as the characters themselves approach a new century; I was motivated by the fact that Phineas's denouement seems to need another act, and that watching the shift to an age where privilege, whether intended to be exercised for the good of the governed (as by the Duke of Omnium) or for that of the governing classes (Trollope's view of those who resisted social change) is no longer unquestioned. To look at Trollope's world and characters in an era where the verities that underpin their virtues are under siege seems to me a compelling basis for stories.
Just as Mark Gatiss's & Steven Moffat's Sherlock made me see the Conan Doyle stories in a new light. So, for example, Conan Doyle's laconic lines in which Watson blandly states that "I have always held, too, that pistol practice should be distinctly an open-air pastime; and when Holmes, in one of his queer humours, would sit in an armchair with his hair-trigger and a hundred Boxer cartridges and proceed to adorn the opposite wall with a patriotic V. R. done in bullet-pocks, I felt strongly that neither the atmosphere nor the appearance of our room was improved by it" are funny, but our appreciation of the good Doctor's sang-froid increases when the reality of the thing is demonstrated in modern-day London:
These re-tellings, additions and adaptations do not detract from the originals; one can ignore the bad ones, embrace or at least enjoy the good ones, and always return to the original in which, as Vincent Starrett long ago wrote:
But there can be no grave for Sherlock Holmes or Watson … Shall they not always live on Baker Street? Are they not there this instant, as one writes? … Outside, the hansoms rattle through the rain, and Moriarty plans his latest devilry. Within, the sea-coal flames upon the hearth, and Holmes and Watson take their well-won ease … So they still live for all that love them well: in a romantic chamber of the heart: in a nostalgic country of the mind: where it is always 1895.