06 January, 2014

Sherlock Holmes is In the Public Domain, At Least Partially

As was discussed on this blog a few months ago the famous fictional detective, Sherlock Holmes, had been an issue of contention since a lawsuit had been filed almost a year ago. The matter at hand was whether Sherlock Holmes, or more specifically his characteristics, would exist in the public domain despite still being under copyright in the United States. This was contested by Sir Arthur Conan Doyle's Estate, and the case has reached it's first decision just after Christmas.

In a summary judgment by the District Court of Illinois Justice Ruben Castillo was faced with the task of deciding whether Mr. Holmes would still be protected by copyright in the US. The initial complaint was filed by the plaintiff Leslie Klinger over the payments of licencing fees in discussing the detective in his book "In the Company of Sherlock Holmes"; the fees having been 5,000 dollars.

Mr. Klinger sought to have the court declare "...that the Sherlock Holmes Story Elements are free for public use because the stories where the elements were first introduced have entered the public domain". The counter-argument against Mr. Klinger's view is that the elements have been developed over the course of all of Mr. Holmes' adventures, leading to them only entering the public domain once all of those stories have fallen out of copyright protection. The case was concerned with elements developed both prior and after 1923, the former of which would have more value as they have been out of copyright for Mr. Klinger's purposes.

In discussing pre-1923 elements Justice Castillo his Honor rejected the Estate's argument, calling it 'novel', utilizing the precedent set in Silverman v CBS. Although his Honor did agree that even though the pre-1923 stories do add to the subject matter which is protectable under copyright regarding the Holmes stories, once the works have entered the public domain they are no longer protected under copyright and are free to use by others. The Estate contested that this would create two different versions, a copyright protected and a public domain version, of the Sherlock Holmes works; something which the courts have previously done and was subsequently accepted by the court in question. This would allow the use of stories and characters from the earlier works, while still protecting latter works from free use without a licence fee.

After Justice Castillo's placement of the pre-1923 works in the public domain, his Honor had to further evaluate whether the post-1923 works would fall in the public domain, or remain under copyright. Both Mr. Klinger and the Estate accepted that certain characteristics differed from the pre-1923 works, having only originated from works written past 1923. The court utilized the 'increment of expression' test, set in Schrock v Learning Curve International, to determine which elements would fall under copyright in the latter works. Under this test "...the only 'originality' required for [a] new work to be copyrightable... is enough expressive variation from public-domain or other existing works to enable the new work to be readily distinguished from its predecessors". This principle, although prima facie would seem to apply to wholly new works, has been deemed to apply to derivative works as well; something which the court accepted that the post-1923 written works be. Mr. Klinger's argument failed as no evidence was given to disprove the differences between the pre-1923 works and the post-1923 works, offering protection for the latter even in the absence of protection for the former.

In its final determination the court saw that Mr. Klinger, and others, could use the pre-1923 stories and characters, while still protecting the later works. The Estate's lawyer stated that they are "...exploring an appeal but asserted that the ruling did not imperil any existing licensing agreements or the estate’s separate claims under trademark law". Under his legal victory Mr. Klinger released a statement, seeing that "...people want to celebrate Holmes and Watson. Now they can do so without fear of suppression by Conan Doyle’s heirs".

The decision is very important, not necessarily in terms of legal precedent, but due to the sheer popularity and fame which the Sherlock Holmes name carries in itself and its intricate stories. Even though the court only accepted that the pre-1923 works belong in the public domain, one can imagine the freedom will inspire many to create their own stories involving the famous detective and his sidekick. Whether the Estate will go forward with their appeal remains to be seen, but many will undoubtedly be glad of Mr. Holmes being open for use, at least partially.

Source: Arts Beat

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