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January 7, 2014 | EntertainmentFrom the blog

Mystery solved: Sherlock Holmes is in the Public Domain

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It’s time to put down the magnifying glass because this mystery has been solved.  Much to the dismay of the estate of Sir Arthur Conan Doyle, a recent decision by US District Court Judge Ruben Castillo, has deemed Sherlock Holmes, Dr. Watson and the rest of the clan part of the public domain.  This decision comes at a time when Sherlock Holmes has become increasingly popular due to screen adaptions such as CBS’s “Elementary,” BBC’s “Sherlock,” and the Warner Brothers movie franchise.

Leslie Klinger, author, editor and Sherlock Holmes expert, sought a judicial determination that the Sherlock Holmes story elements are free for public use because the stories where the elements were first introduced have entered the public domainThe crux of the mystery as to whether Sherlock Holmes is in the public domain, turned on the issue that all but ten of Doyle’s Sherlock Holmes stories predated 1923.  According to US copyright law, 1923 is a crucial year, as many works published after January 1, 1923, have not yet entered the public domain.

The court stated that the public may use the pre-1923 story elements without seeking a license.  The court’s more difficult task was to differentiate between the elements introduced in the public domain stories (pre-1923 story elements) and those elements in the post-1923 copyrighted stories.  The court noted that the Doyle Estate proffered a novel legal argument that the characters Sherlock Holmes and Dr. Watson continued to develop throughout the copyrighted post-1923 stories and therefore should remain under copyright protection until the final copyrighted story enters the public domain in 2022.

The court cited Pannonia Farms, Inc. v. USA Cable, stating only the “increments of expression” added by the post-1923 stories were protected by copyright.  Courts do not distinguish between elements that complete a character and elements that do not, instead, the case law instructs that the “increments of expression” contained in copyrighted works warrant copyright protection.  Doyle’s Estate attempted to distinguish Sherlock Holmes and stated that to deny copyright on the whole character would be to give the detective “multiple personalities.”

The Doyle Estate argued that Sir Arthur Conan Doyle developed his characters throughout the entire collection of stories, and therefore no single work is derivative of another work.  The court found that the subsequent works in the collection, including the post-1923 stories, met the definition of derivative works and therefore were derivative works of Sir Arthur Conan Doyle’s first Sherlock Holmes story.  The Court ultimately ruled that only the details and elements from the stories published after January 1, 1923, are not in the public domain and may not be freely used.

What does this mean for those who wish to use Sherlock Holmes for derivative works?  It means that all Sherlock Holmes elements developed pre-1923 works are fair game.  This decision can have a serious impact on the Sherlock Holmes franchise and potentially other authors who may believe their work is protected.  This decision could also affect the Doyle Estate’s ability to license Sherlock Homes, and at the very least will affect the Doyle Estate’s bargaining power with the studios.

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