Copyright protection lasts a long time, but it isn’t long enough for the estate of Arthur Conan Doyle, author of the well-known Sherlock Holmes books. Of the fifty novels and short stories written by Conan Doyle about the famous detective and his sidekick, Dr. Watson, forty have outlived their copyrights (which in this case, expired 95 years after first publication). Two decisions by the Seventh Circuit Court of Appeals will make enforcing the rights in the other ten an uphill battle.
Back in June, the Conan Doyle estate suffered a decisive loss in a case brought by Leslie Klinger, an editor who wanted to publish an anthology of modern Sherlock Holmes fan fiction. Klinger filed a declaratory judgment action against the Conan Doyle estate after the estate threatened to block publication of the book unless Klinger paid a licensing fee. Klinger prevailed in district court and on appeal. In the Seventh Circuit’s opinion, Judge Richard Posner stated in no uncertain terms that copyright protection of a fictional character cannot be extended beyond the expiration of the copyright by alterations to the character in subsequent works. In the course of the opinion, Judge Posner characterized the estate’s arguments to the contrary as “quixotic” and “lacking any ground known to American law.”
The tongue-lashing continued in Judge Posner’s separate opinion addressing Klinger’s request for attorneys’ fees. The court awarded Klinger every penny he spent on appeal, citing the “public service” Klinger performed by “combatting a disreputable business practice.” Posner predicted that the court’s decision will make it more difficult for the Conan Doyle estate and others of its ilk to play similar “extortionate games” in the future.
Technically, the estate only lost its copyrights in the characters as they exist in the first forty Sherlock Holmes stories. Any traits, details, or changes added in the ten most recent books are still protected, and would need to be licensed by anyone intending to use them. For purposes of illustration, imagine needing a license only for character developments arising after Harry Potter joins up with the Order of The Phoenix or after Luke Skywalker learns the truth about his parentage.
The Conan Doyle estate will, however, face practical challenges should it choose to enforce the existing copyrights. Whereas before, the estate could demand payment almost any time an unlicensed Sherlock made an appearance, it will now have the arduous task of reviewing potentially infringing material in detail to determine whether protected character traits have been copied.
These decisions are a shot across the bow to those who collect licensing fees based on copyrights of questionable validity. They also send a message to people using these materials that they can stand up and fight without going broke, at least in the Seventh Circuit.