Copyright Extension & 'Rounded' Characters

Fans of Sherlock Holmes and his trusted sidekick Watson will appreciate the legal victory just scored against the former holders of these characters’ copyrights. While the denial of a copyright extension in this case isn’t controversial, the argument advanced by the Doyle estate was unique, if not particularly effective.

Why do copyrights expire?

In a society that is very used to copyright protections, it can be difficult to understand why these protections would expire. It is important to remember that copyright protections have not always been so accepted, and that the law – which at its heart is a curb on free speech – was and is debated by some.

The goal of copyright law might be summed, “to ensure that artists are compensated for their work, while promoting the creation of art.” Examining its effectiveness to this end, a recent study conducted at Stanford University found that the introduction of copyright law to Italy under Napoleonic rule resulted in the creation of more and higher quality operas. This makes sense: Artists are more inclined to work hard when they are assured of a share of the profit from their work.

The flip side of this is that copyright protections that last a long time have a hindering effect on art. Sherlock Holmes and Watson are a part of the public experience, and Sir Arthur Conan Doyle has long since passed away. The expiration of copyrights allows things like this to pass into the public domain, opening the door for new interpretations and uses.

When do copyrights expire?

The question of “why?” copyrights expire is relatively straightforward to answer, however, the question of “when?” is considerably more complex. For works created after Jan. 1, 1978, the protections last for the life of the author, plus 70 years. This doesn’t apply to anonymous, pseudonymous or for-hire work, however – these protections last 120 years after the work’s creation or 95 years after the work’s publication, whichever comes first.

Sir Arthur Conan Doyle wrote Sherlock Holmes a long time before 1978, however, and this places the work in more complex legal territory. Under UK and Canadian common law, all of the Sherlock Holmes stories entered the public domain in 1980. However, using a peculiarity of U.S. law, surviving heir, Dame Jean Conan Doyle, was able to register a copyright on “The Case-Book of Sherlock Holmes,” a collection of stories first published between 1921 and 1927.

Using this copyright, the Doyle estate has been enforcing a copyright on Sherlock Holmes generally ever since…until losing a case just this summer.

Klinger vs. Doyle

Leslie Klinger, an author who wrote a book of original Holmes fiction, sued the estate for the right to use the characters and settings without paying royalties. He argued that, while the last 10 stories written by Doyle remained under protection, the estate held no such protection on previous stories. As such, only elements added specifically in those 10 stories were protected.

Klinger won the suit and the Doyle estate appealed. Just recently, the seventh circuit court of appeals opted to uphold the ruling, despite the Doyle estate’s fascinating argument. It suggested that Doyle made the characters more “round” in the last 10 stories, allowing them to evolve and change. As such, the copyright protections should apply to these characters that were “rounded” by works under copyright protections.

“What this has to do with copyright law eludes us,” Judge Richard A Posner wrote in the court’s opinion.

I am inclined to agree – both in legal terms and on principle. Legally, the Doyle estate advanced an interesting, but non-legal argument. Accepting it would open the door to confusing and misguided copyright policy. Perhaps almost as importantly, it seems that after all this time the characters of Sherlock Holmes and Watson should be in the public domain. Copyright law is supposed to promote artistic progress, not hinder it.