We investigate the District Court of Illinois decision Klinger v Conan Doyle Estate, Ltd., confirming that literary characters can be freely used without a licence where copyright has expired on early works in a series. Character elements introduced in later works which are still subject to copyright cannot be used without a licence.
“The Man with the Twisted Lip” by Sidney Paget, published in the December 1891 edition of The Strand Magazine, from Wikimedia Commons.
Leslie Klinger, a Sherlock Holmes expert and editor of a series of new Holmes stories, sought a declaration from the District Court of Illinois that there was no need for him to obtain a copyright licence to use the characters of Holmes and Doctor Watson in his new book.
In Australia and most of Europe, all the Sherlock Holmes stories are already in the public domain. However, the situation is different in the US. The Copyright Term Extension Act 1998 (sometimes called the Sonny Bono Act or the Mickey Mouse Protection Act) extended copyright on works in their renewal terms when the amendment came into effect. The copyright term for works published between 1923 and 1977, including the last 10 Sherlock Holmes stories, was changed to 95 years from the date that copyright was originally secured. This means that although US copyright has expired on most of the Holmes stories, the last 10 stories are still protected by copyright in the United States. The last 10 stories are set at various times throughout Holmes’ career, filling in some of the gaps between earlier stories.
The Conan Doyle estate argued that the characters are complex and multi-dimensional and that they hadn’t been completely developed in the public domain stories. For that reason, the estate said that Klinger would need to pay $5,000 for a licence if he wanted to use the characters before copyright expired on the whole series.
The court flat-out rejected the estate’s “novel” argument, saying that “It is a bedrock principle of copyright that ‘once work enters the public domain it cannot be appropriated as private (intellectual) property,’ and even the most creative of legal theories cannot trump this tenet”.
In other words, the position is elementary, dear reader! Where a literary character has appeared in a series so that part of the series is still copyrighted but part is not, there is no need to obtain a licence to use any part of the character which appeared in the public domain works.
We think the decision is clearly correct in law, even though it may be difficult to work out when a particular character element which was slowly developed over many years first appeared, or for copyright owners to monitor infringements of a copyright personality when a separate “public domain” version of the same character also exists.
This decision may encourage reinterpretation and adaptation of other popular characters who are similarly well-known and well-loved and who appear in long-running series. For example, when US copyrights on cultural icons such as James Bond, Mickey Mouse and Superman start to expire there will be fewer obstacles to authors creating new stories around these characters. But the implications of this decision are likely to be quite narrow, limited to situations where:
- The character was developed incrementally so that there is a public domain personality and a different copyright personally.
- The series was written over a relatively long period of time, so it will be inconvenient to wait for the whole series to enter the public domain. If the series was published over a short time frame, authors may prefer to delay publishing rather than trying to work out whether the Klinger decision applies. Holmes stories were published over an unusually long, 40 year period. By comparison, the James Bond books were published over 13 years, the Chronicles of Narnia was published over 6 years and the Lord of the Rings over a single year.
- The licence fees are substantial. If the fees are low, authors and publishers might decide to simply pay for a licence to avoid the copyright issue.
The Conan Doyle estate plans to appeal.
Those interested in doing extra detective work can analyse the differences between the pre- and post-1923 stories at Project Gutenberg. The parties’ submissions and the judgment can be accessed on the Free Sherlock! blog operated by the plaintiff, here.