Question and Answer #9: What About the Copyright for Sherlock Holmes?

Question: You wrote about the copyright for the song "Happy Birthday." What about the copyright for Sherlock Holmes? Isn't somebody suing about this?

Answer: This again brings up the question about the ability to claim copyright protection for a fictional character. Copyright law protects works of authorship--fiction, nonfiction, plays, films, audiorecordings, and so on. It's words on paper, images on film, sound on disc. Characters like Nick and Nora Charles, Sam Spade, Philip Marlowe, Captain Kirk, Indiana Jones are fictional characters in a copyrighted work. You cannot use the expression in a work--copy it, rework it, perform it--without permission of the copyright holder. But some fictional characters can exist inside and outside of a particular work. The cliche rings true: they have a life of their own. You say, "Sherlock" or "Indiana Jones," and people know what you mean. Philip Marlowe appears in a number of Chandler novels. He floats over them like a phantom, he covers them in a spider web. He's a conception--more than an idea, since he's been created in the work, but the character is not a separate work of authorship. But people could ask, If you're not stealing Chandler's expression, isn't Philip Marlowe like an idea that cannot be protected by copyright?

In U.S. law, the consensus is that a well-defined character is protected by copyright. Judge Learned Hand wrote in Nichols v. Universal Pictures in 1930, "the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctively." And so,under U.S. law, a distinct fictional character can be protected by copyright law.

Extrapolating on this, if a work has fallen into the public domain and is, then, not protected by copyright, then the copyright on the characters must have expired as well. If the characters are protected, it is not by a separate copyright but by virtue of the copyright in the work from which they came. If the works are no longer protected by copyright, how can the characters, for which no copyright registration is possible, continue to be protected?

As you can see, there is reason to this thinking, but it would surely be easier to claim copyright protection for a fictional character if you could register the character just like you are able to do for the work itself.  But you can't. In 1976, when Congress revised U.S. copyright law, it didn't add a category for fictional characters. The copyright protection for fictional characters is just accepted for characters in copyrighted works that are well delineated, like Sherlock Holmes.

The first book in which Sherlock Holmes appeared, which was actually first serialized in a magazine, was Study in Scarlet by Sir Arthur Conan Doyle in 1887. Doyle published his last collection of Sherlock Holmes stories, The Case Book of Sherlock Holmes, in 1927. The earliest of those stories was published in 1921, the latest in 1927. Under UK law, the copyright for the Holmes books expired in 2000. Under U.S. law, any work published prior to 1923 has fallen into the public domain. The Case Book of Sherlock Holmes is, then, protected by copyright.

When Leslie S. Klinger wanted to publish a collection of new Sherlock Holmes stories, the Conan Doyle estate said he would have to pay a fee. In the lawsuit, Klinger v. Conan Doyle Estate, N.D. Ill., No. 1:13-cv-01226, filed 2/14/13. Klinger, who is also an attorney, argues that once the Sherlock Holmes stories--except for The Case Book of Sherlock Holmes--fell into the public domain, so did the copyright of the Sherlock Holmes character.

The estate's position appears to be that, in writing the stories in The Case Book of Sherlock Holmes, Doyle was obviously reestablishing the copyrighted character that he had created and the copyright in the character continues until The Case Book falls into the public domain in 2023. Since the copyright for a fictional character tags along with a copyrighted work, shouldn't the copyright for Sherlock Holmes tag along with the copyright for The Case Book of Sherlock Holmes?

The public sentiment at the moment appears to be on the side of Klinger. And as an author I would enjoy writing Sherlock Holmes stories without having to even think about getting permission to do so. But given the vaporous nature of copyright protection for fictional characters, you do have to ask, what was Conan Doyle doing in those last stories--using his own creation that had fallen into the public domain, or recreating his creation, and thereby reestablishing the copyright?

The case is pending, and we'll have to wait for the outcome. But, as a writer as well as an attorney, I findsome credence to the argument that when he was writing new Sherlock Holmes stories after 1923, Doyle was recreating his Sherlock Holmes character and not in the same situation as a writer reusing a fictional character that someone else had created. In other words, he was coming home, he was picking up where he left off. At least, that's a possible argument.

The Doyle estate did not submit any responsive pleadings, and on July 29, 2013  Klinger submitted a motion for summary judgment. The court gave the estate until August 27, 2013 to respond to Klinger's summary judgment motion, and Klinger will have until Sept. 10 to respond to the response.

Then, hopefully, we'll see.

Copyright 2013 by John T. Aquino. This article does not constitute legal advice and is intended for educational purposes only.