The world's greatest detective could be yours free of
licensing fees as a recent complaint seeks to establish the boundaries of Sherlock
Holmes' entry into the public domain.
Yesterday, Leslie S. Klinger, the author and editor of
multiple Sherlock Holmes' articles and books, filed a declaratory judgment
action against Sir Arthur Conan Doyle's Estate.
Klinger, who is seeking a judgment of non-infringement, intends
to publish a book titled, In the Company
of Sherlock Holmes (a/k/a Study in
Sherlock II), a collection of new and original Sherlock Holmes' stories by
Conan Doyle's Estate is currently holding up the book's publication,
having threatened Pegasus Books, Klinger's publisher. According to the
complaint, the Estate contacted Pegasus with the following threat:
If you proceed instead to bring out
Study in Sherlock II unlicensed, do
not expect to see it offered for sale by Amazon, Barnes & Noble, and
similar retailers. We work with those company's routinely to weed out
unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate
to do so with your book as well.
Conan Doyle's collective writings are referred to as the Canon of Sherlock Holmes, which refers
to the four novels and fifty-six stories featuring Sherlock Holmes and other related characters
and story elements.
Klinger asserts that most of the Canon, along with the related story elements, has passed into the public domain. This excludes The Case-Book of Sherlock-Holmes, published in 1927, which was
copyrighted by Conan Doyle's daughter in 1981. Klinger asserts that The Case-Book's copyrights, which end at various times before 2023, have no bearing on the complaint.
"None of the Sherlock Holmes Story Elements first appeared in
The Case-Book of Sherlock Holmes or
in the stories that comprise the collection," Klinger says, "and none of the
Sherlock Holmes Story Elements are
protected by any copyright that may still apply to The Case-Book of Sherlock Holmes or its constituent stories under
Because In the Company of Sherlock Holmes will not use any storylines, dialogue,
characters and character traits that were newly introduced in The Case-Book of Sherlock Holmes, Klinger argues that no
license is required.
These assertions aren't without precedent. In 2004, the
Southern District of New York noted that only nine of Conan Doyle's sixty
stories continue to enjoy copyright protection in the United States, with the
remainder in the public domain. Only the increments of expression added by the Nine Stories were deemed protected.
"[T]he Holmes and Watson characters have been delineated in over fifty stories that no longer possess copyright protection," the court said. "[J]ust as these many stories have passed into the public domain, so too have their delineated constituent elements, such as the Holmes and Watson characters ...." Pannonia Farms, Inc. v. USA Cable, 2004 U.S. Dist. LEXIS 23015 (S.D.N.Y. June 7, 2004) [enhanced version available to lexis.com subscribers].
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