Conan Doyle Estate Asks Supreme Court To Step In And Block Sherlock Holmes From Being Public Domain'd
from the a-curious-case dept
In February of last year, we wrote about author/lawyer Leslie Klinger suing the Conan Doyle Estate for demanding a license for his latest book about Sherlock Holmes. An earlier book that Klinger had published about Holmes had resulted in his publisher paying the estate a license, but Klinger felt he didn’t need such a license for the latest book. Nearly all of Sir Arthur Conan Doyle’s Sherlock Holmes works are in the public domain (published before 1923), but there is one remaining book of a bunch of stories called The Case-Book of Sherlock Holmes which was published after 1923 and is still in copyright. Klinger insists his own latest book would only pull from the public domain works, but the Doyle Estate made the amazing argument that it could effectively keep the characters of Holmes and Watson locked up forever by claiming that each new work added another layer to the character in an ongoing fashion, and the clock would start anew each time.
This reasoning got rejected quickly by the district court, and last month an appeals court ruled (strongly) against the estate, making it quite clear that the basic characters are very much in the public domain. As the court noted, the estate doesn’t get to make up copyright law the way it would like:
We cannot find any basis in statute or case law for extending a copyright beyond its expiration. When a story falls into the public domain, story elements?including characters covered by the expired copyright?become fair game for follow-on authors…
The court seems completely unpersuaded by the Conan Doyle Estate’s ridiculous fear that (gasp) if Holmes goes into the public domain, some people might create different versions of him. That’s actually kind of the point of the public domain. That’s what’s supposed to happen.
Well, wouldn’t you know it? The Conan Doyle Estate is not giving up, and appears poised to take this to the Supreme Court. It has started out by asking the Supreme Court to stay the appeals court ruling (basically blocking the publication of the book) until the estate can ask the Supreme Court to hear the full case. The estate’s argument is about as silly as you’d expect. Basically, it insists that because Klinger has not handed over his entire work, it can’t be declared to be non-infringing, and thus his publication should be blocked. The Estate is actually flipping the equation (without admitting it). It’s correct that to show infringement, you first would need to examine the work, but here it’s actually demanding that a negative be proven. It’s demanding that Klinger present his final work to prove that it doesn’t infringe. That’s silly. If Klinger’s final work does infringe, then the estate can bring it to court. The question Klinger’s original lawsuit addressed was more straightforward: so long as he relies on the public domain works as his source material, there shouldn’t be anything that infringes. And two courts have agreed with him.
Hopefully the Supreme Court rejects this, which would also likely mean that it will reject the eventual appeal from the estate as well. However, if Justice Kagan (who is handling these kinds of requests) decides to grant the stay, then we could be in for another round and another chance for the Supreme Court to dig in on copyright issues. Given its past record — especially on the public domain — this might be a dangerous thing.