12 July, 2014

Sherlock Holmes Stays in the Public Domain, Yet Again

A case which this blog has discussed quite extensively during its life cycle in the United States' courts (early discussion can be found here, some more here), is the Sherlock Holmes case, where a long and arduous battle has been waged over the protectability of the crime fighting genius. battered, beaten and discussed at length, the case could have finally come to its end, and it seems that Mr. Holmes could be more usable to all of us as a result, after the US Court of Appeals published its decision almost a month ago.

For the uninitiated, the case of Leslie Klinger v Conan Doyle Estate dealt with Leslie Klinger, who intended to publish a book called In the Company of Sherlock Holmes; a sequel to his book A Study in Sherlock Holmes, a book very much written under the blessing of the Conan Arthur Doyle Estate (through a gracious licensing agreement, surely). As a result the book was refused by its publisher Pegasus, and instead of yielding and seeking a licence from the Estate Mr. Klinger sought a declaratory judgment from the court stating that Sherlock Holmes belongs in the public domain, and would therefore be free for everyone to use. At first instance Mr. Klinger was granted the summary judgment he had sought, however this resulted in the Estate appealing the decision, which landed softly on the Court of Appeals' lap.

In the court's decision, delivered by Justice Posner, the Estate appealed the summary judgment under two grounds: that the court did not have jurisdiction over the matter as there was no dispute to be decided, and should they be decided to have jurisdiction, the Estate argued that the 'complex character' of Sherlock Holmes, cultivated over the years of story telling in the character's universe, would only be out of copyright once the latter stories have seen their copyright protection period end, as many former stories have already fallen out of copyright protection. The latter argument was well presented by Justice Posner: "...[even though the] early stories... are already in the public domain does not permit their less than fully "complexified" characters in the early stories to be copied even though the stories themselves are in the public domain".

Even Sherlock was tired of this constant bickering
Justice Posner first tackled the issue of jurisdiction which, under 28 USC section 2201, is limited to only cases which pertain to an 'actual controversy'. This relates to declaratory judgments alone, and as Mr. Klinger sought such a declaration, his matter would have to pertain to a controversy (i.e. a legal dispute) for the court to be able to give the aforementioned declaration. Due to Mr. Klinger's prior knowledge of the Estate's actions should he publish the book, he had intimate knowledge of a potential dispute, giving jurisdiction to the court to give a declaratory judgment as there was a true legal dispute.

The meat of the case was in whether a 'complex' character could bring protectability to earlier works, or to the character as a whole in the series through his or her development in that particular series. Justice Posner rightfully opened with the notion that, under US law currently, there is no possibility to extend copyright protection on something which has ceased to be protected, even if the character lives on in the series and in works which are under copyright still. Quoting Silverman v CBS, Justice Posner stated that "[t]he copyrights on the derivative works, corresponding to the copyrights on the ten last Sherlock Holmes stories, were not extended by virtue of the incremental additions of originality in the derivative works". The latter ten works, which are still under copyright, remain protectable only to those part which have been added and are truly original to the author or authors of those parts; the rest remain unprotectable.

Although the Estate argued that, should copyright protection not be afforded to character which are developed in a longer span of time, there will be less incentive for authors to create those works. Justice Posner effectively rejected this notion, and put forth that the dissemination of works and the incentive to do so even with materials which are in the public domain, is important as well and should not be wholly dissuaded by law. Even though the characters were, through the Estates argument, 'rounded off' in the later issues of the Sherlock Holmes saga, this does not extend their copyright protection to the entire 'complex' character even in the former parts of the series. Justice Posner affirmed the prior decision, and Sherlock Holmes effectively stayed in the public domain as a result.

The Estate's argument was indeed a novel one, and did provoke at least this humble writer to ponder whether complexity is defined through longevity, as opposed to the initial originality. Incremental developments of characters and stories happen all the time, almost organically, yet that does not mean the essence of the very character you first met on those first few pages was somehow altered beyond recognition. Who and what Sherlock and his companions were will not cease to exist the moment they're created upon and added to by others, but they'll live on stronger, renewed and revitalized, and I for one am sure that younger generations will appreciate those works just as much as Sit Doyle's works.

Source: IPKat

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