Sherlock is Free–At Long Last!
With remarkable speed, the Seventh Circuit issued its opinion today, upholding the ruling of the District Court in our favor in Klinger v. Conan Doyle Estate, Ltd. The opinion itself can be found on the www.free-sherlock.com website.
The results are:
(a) Our new book, In the Company of Sherlock Holmes, will come out in November as planned. The contributions are fantastic. Pegasus Books has been hard at work, galleys are in hand, and we are looking forward to getting the book into your hands. The book can be pre-ordered from the usual suspects.
(b) Creators throughout the U.S. are now free to publish new works using the characters of Holmes and Watson. It’s true that the Estate retains copyrights in 10 of the Case-Book stories, and the elements of those stories are protected by copyright. However, the “fair use” doctrine will permit use of many elements without license. For example, I believe that a story that happens to mention Watson’s rugby career (without being a story about that career) would likely be protected by “fair use.”
The Estate has pounded the drum about its “trademark” rights. To set the record straight: The Estate has applied for trademarks across a broad range of goods and services. The Estate’s applications are pending and, according to most experts, are unlikely to be granted. Of course, this does not stop the Estate from attempting to dissuade people from using the characters of Holmes and Watson, through the Estate’s tried-and-true technique of threatening to block distribution. Hopefully, creators will take heart from our victory today and stand up to bullies, whoever they may be and whatever legal claims they may make.
Thanks to countless friends and colleagues for their support in our efforts!
I congratulate Mr.Klinger on his legal victory and wish him success with his upcoming book. However, I must confess that I remain as confused now as I was before the appeal. I cannot get it out of my mind that both the District Court and the Circuit Court of Appeals, in confining their findings and rulings to copyright issues, seem to have ignored entirely the holding in favor of the author Dashiell Hammett in Warner Brothers,et al vs Columbia Broadcasting system, et al (including Dashiell Hammett).216 F2nd,945.That case clearly established that an author’s right to his characters persists beyond, and is separate and apart from, copyright limitations.. I do not understand why the Conan Doyle Estate failed to cite that case. Apparently, I am missing something here. Will someone please tell me what it is?
As I read it, the court case to which you are referring deals with the character Sam Spade, and whether or not the rights to the character goes with the book. I am not a legal expert, but it appears to me that the key difference between Sam Spade and Sherlock Holmes is the date on which the characters were created. At the time of the above case, Sam Spade the character would certainly have still been under copyright. There was no question of this in the case. The question was, whether Warner Brothers owned all the rights to create performances that included Sam Spade, because they had the rights to the original story “The Maltese Falcon.” At no time did either Warner Brothers claim that Sam Spade was in the Public Domain. In this case, the characters of Sherlock Holmes and John Watson were created prior to 1923. In this country, anything created prior to 1923 is no longer in copyright. The estate is arguing that Holmes and Watson should still be copyrighted because 10 of the stories were written after 1923. Mr. Klinger and his publisher argue that the characters first appeared in print prior to 1923 and therefore are not in copyright, although they agree that the final 10 stories, written after 1923 are still in copyright.
In fact, to my eyes, the case you reference seems to support Mr. Klinger and his publishers, more than the estate of Conan Doyle, because it does indeed hold that the copyright on a character is separate from the stories that the character appears in. It holds that even though there are still 10 stories that are under copyright in the United States, the characters are not because they were created prior to 1923.