The Case of the Canon That Spiked a Book: Is Sherlock Holmes Still Under Copyright in the US?
Leslie Klinger has written a good many books about Sherlock Holmes. Currently he and author Laurie R. King are editing a book of stories by genre writers that are inspired by the Holmes canon. Their publisher, Pegasus Books, was contacted by the Conan Doyle Estate which, to quote Klinger,
implied that if the Estate wasn’t paid a license fee, they’d convince the major distributors not to sell the book. Our publisher was, understandably, concerned, and told us that the book couldn’t come out unless this was resolved.
Klinger began an action a month ago, asking the District Court in Illinois for, among other things, a declaration that,
any member of the public, including Plaintiff, has the right in the United States to copy the expression embodied in these public domain works, and to create and exploit derivative works incorporating any and all of the Sherlock Holmes Story Elements, without infringing any right of Defendant under copyright.
Straightforward copyright infringement matters can be difficult enough, particularly given the ease with which data can now be made available online simultaneously everywhere and given the divergence of copyright laws in various jurisdictions. In this instance, for example, all of the four novels and fifty-six stories comprising the Holmes canon are in the public domain in Canada — copyright disappearing fifty years after the death of Doyle in 1930. Because of the different U.S. law, however, ten of the late Holmes stories are beyond doubt still protected by copyright there. (By contrast, and for the same reason of different laws, P.G. Wodehouse’s writing is in the public domain in the U.S. but not yet in Canada.)
But here the implied claim by the Estate is that their copyright extends not merely to the exact wording of the ten late stories but also to certain stock, identifiable features and characters in the canon — that is, that their tail reaches back and wags the whole dog. The brunt of Klinger’s effort in his claim has to do with a demonstration that these identifiable elements came into existence long before the ten late stories, i.e. within material otherwise and ostensibly in the public domain, and that some or most of these features are scarcely represented within those late stories.
Klinger has created a website — Free Sherlock! — where you’ll find a summary of the situation and links to the court documents available thus far.
This situation is far from unique. I am a member of a society incorporated in the UK which was left the papers, including some unpublished stories of a writer who died just over 50 years ago. The society was set up by the Trustees set up under the authors will. A significant number of the authors best know works are still in print, and the copyright for those items was “leased” after the authors death by the Trustees, so that income from that source could be paid to individuals for their lifetime, as was specified in the will. Revenues from those items are to revert to the society, once the individuals who have received residual payments have died. (none yet) The society is now concerned that who holds the copyright to the “characters” is unclear, since two or possibly more entities or individuals appear to hold copyright to various parts of the authors work. This needs to be cleared up, so that the Society, which will eventually get the residual rights to the published works, as well as those to the papers the Society holds directly, has some idea what the potential income could be, and how to protect it, as various jurisdictions deal very differently with copyright renewal. UK law is different than that in this Sherlock Holmes reference, yet I think the underlying issue is similar.