What does the Free Sherlock ruling mean for fans?
Guest Article By Betsy Rosenblatt
On December 23, 2013, a U.S. District Court ruled in the case of Klinger v. Conan Doyle Estate, Ltd. that U.S. copyright protection had expired on all elements of the Holmes canon that were first introduced before 1923 — including the characters of Holmes and Watson. The ten stories of the Case-Book of Sherlock Holmes, and the “increments of expression” unique to those stories, are still protected by U.S. copyright.
The full text ruling can be found here.
What does that mean for Sherlockians? The case is a victory for Klinger and great news for those who want to commercialize Holmes adaptations, but its impact on fans is, largely, an indirect one. Here’s why:
– It’s only a decision in this one case. Its factual findings don’t bind future courts, although its core legal principle—that characters enter the public domain at the same time as the stories that establish their identities—will be persuasive to other courts in other cases.
– The entire Holmes Canon was already in the public domain everywhere but the United States. So people who have been making Holmesian fanworks outside the U.S. have been in the copyright clear for quite some time. Indeed, the BBC didn’t have to get permission to make Sherlock, although they did obtain a license from the Conan Doyle Estate, Ltd. (“CDE”) to distribute the show in the U.S. Therefore, there’s nothing in this ruling that could harm BBC Sherlock. Indeed, although the ruling may have established that WGBH’s license is partly (maybe even entirely) unnecessary, the CDE’s attorney told the New York Times that the ruling did not affect any existing licenses (including, presumably, the license for distribution of BBC Sherlock).
– U.S. Sherlockians have always relied on copyright fair use principles to support the creation of fanworks. That reliance is still necessary for most fanworks related to Holmes, because copyright not only still protects the post-1923 works, but also (obviously) the sources for many Holmes fandoms, such as the Warner Brothers films, Elementary, and BBC Sherlock. But the fact that the original-recipe Holmes and Watson are in the public domain is still very good for Sherlockiana, and especially for fans of the original Canon, as their right to make fanworks based on the pre-1923 stories is now unassailable. Indeed, since most of the traits of Holmes and Watson, and most of the stories, were introduced before 1923, fan creators will seldom even have to consider whether their Doyle Canon fanworks are fair use.
– Noncommercial fanworks based on new media like Elementary or BBC Sherlock, and based on the Ten Stories, will still generally be fair use, as they always have been. The CDE generally didn’t go after noncommercial fanwork creators, and probably won’t in the future, even if those works are based on the remaining protected stories. They are more likely to challenge commercial uses (that is, moneymaking ventures), although many of those would likely be fair uses as well.
– Keen Sherlockian eyes will observe that the judge got one point factually wrong: Sherlock Holmes’ retirement was first described in His Last Bow (one of the public domain stories), not the 1926 Lion’s Mane. What does that factual error mean for fans? Probably not much, since this factual finding won’t bind future courts. Based on the legal principle articulated in the case, Holmes’s retirement to the South Downs, on a small farm among his bees and books, including the “Practical Handbook of Bee Culture, with some Observations upon the Segregation of the Queen,” are in the public domain—but the details of his retirement setting, and (of course) the storyline of The Lion’s Mane, are still protected.
– This ruling is in line with a number of earlier cases in holding that characters may enter the public domain even while certain stories featuring those characters may remain protected. It’s a reasonable rule: otherwise, copyright owners could essentially create eternal copyright protection for characters simply by continuing to publish new stories about them. U.S. copyright expiration is very complicated—depending on when a work was created, copyright term may depend on things like whether the work was published with a copyright notice, whether copyright registration was renewed, and when the author died/dies—but copyright protection always expires, eventually. This ruling reminds us that, as the court said “where an author has used the same character in a series of works, some of which are in the public domain, the public is free to copy story elements from the public domain works.” The same rule, applied broadly, would free not only Holmes and Watson, but also other characters created early in the 20th century, like G.K. Chesterton’s Father Brown, Edgar Rice Burroughs’ Tarzan, and Agatha Christie’s Hercule Poirot.
– Finally, the case is indirectly good for Sherlockians, since it makes it harder for the CDE to charge licensing fees to commercial adapters of Holmes and Watson. In the future, that may mean more Holmes fandoms to draw from!
The ruling may not be the last we hear of this case. The CDE has 30 days from the date of the ruling to request an appeal, and the CDE’s attorney told the New York Times that they were considering making such a request. In the same article, the CDE’s attorney said that the case has no impact on its “existing trademark claims.” This refers to the fact that the CDE has actively pursued trademark protection for a number of words and images relating to Sherlock Holmes, including the CDE’s logo and the words “Sherlock Holmes.”
Unlike copyrights, which gives owners exclusive rights over works of authorship, trademarks protect brand identities—trademark law is focused on preventing consumer confusion about the source, sponsorship, or affiliation of a product or service. In other words, trademarks are designed to prevent consumers from being tricked into believing a product or service comes from one source, when it in fact comes from another.
The case has no direct impact at all on any of the CDE’s trademark assertions, although it does highlight the fact that that many different entities have used, and will continue to use, the names and characters of Holmes and Watson without permission from the CDE.
The OTW runs a lot of fandom-based projects, including the Archive of our Own, a scholarly journal about fan cultures, and a fandom wiki—and they also provide legal advice and advocacy for and on behalf of fannish creators, which is where Betsy (and people like her on the committee) comes in.