Tuesday, February 26, 2013

Elementary, my dear Holmes fans

For a Sherlock Holmes fan, the last few years have been a real treat. The Robert Downey, Jr. movies, the PBS Masterpiece episodes Sherlock, and the CBS series Elementary have breathed new life into the characters and, in the case of the PBS and CBS offerings, have given Sherlock Holmes relevance in a modern world.

What’s more, for the last fifteen years or so, there have been new books written about Sherlock Holmes as a boy (Andrew Lane), Sherlock Holmes working with his female partner and wife (!) Mary Russell (Laurie R. King), untold stories from the files of Dr. Watson (Hugh Ashton), and even Sherlock Holmes in northern Minnesota at the time of the great Hinckley fire (Larry Millett).

I assumed that the extensive new material was the result of the expiration of copyright protection of the original works by Sir Arthur Conan Doyle.  While new stories alone would generally not infringe the original material, the use of the characters would – as long as the original works were still protected by copyright.  

A sometimes overlooked aspect of copyright protection is that granted to the literary character – not every character – but those given distinctive personalities that are developed to the point at which the character’s behavior is relatively predictable. While such protection is most easily understood for characters appearing in multiple volumes, such as James Patterson’s Alex Cross, Stieg Larsson’s Lisbeth Salander and J.K. Rowling’s Harry Potter, there are memorable single-book characters that would also qualify. Think Scarlett O’HaraHolden Caulfield and Garp.  But when the copyright on the underlying work(s) expire, so goes the copyright protection of the characters.

The character of Sherlock Holmes first appeared in publication in 1887, and anything published before 1923 is likely in the public domain. A good deal of the Sherlock Holmes material was published prior to 1923, so the fact that many of Conan Doyle’s works are now in the public domain would explain the plethora of new material utilizing the Holmes characters, right? 

Not necessarily. A recently filed lawsuit in Illinois federal court suggests that most, if not all, of the recent film and television productions and books have paid royalties to the Doyle estate irrespective of the questionable copyright protection. Leslie Klinger, an author and recognized Sherlock Holmes expert (he served as a technical advisor on the Robert Downey Jr. films) brought the suit against the Doyle estate seeking a declaratory judgment that copyright protection has expired on Sherlock Holmes story elements that establish the essential traits of the characters (even though some of Doyle’s later works are still protected by copyright), thus releasing them into the public domain.

Klinger believed this to be the case with his earlier book, A Study in Sherlock, published in 2011 by Random House, but was apparently overruled by the publisher which entered into a license agreement with the Doyle estate after being threatened with litigation for copyright infringement. Late last year, Klinger was contacted by the Doyle estate which demanded a licensing agreement for Klinger’s new project, In the Company of Sherlock Holmes, and although the parties traded letters, no agreement was reached. Rather than wait for the estate to make a move, Klinger decided to force the issue now.

It is too early to speculate about outcome, but one could imagine the court parsing Holmes’ character to determine what aspects of his persona, if any, were introduced by Doyle in his later works, and thus arguably still protected by the remaining copyrights. Such a result would seem to be so difficult to apply that it could effectively maintain the status quo – reputable writers, publishers and producers would pay for a license rather than undertaking the arduous task of analyzing character elements.

And would that be all bad? So far, it hasn’t precluded new stories and just maybe the claim of the estate’s rights has directly or indirectly had a positive influence on the use of Holmes in the new fiction. One thing is certain—if Sherlock is found to be in the public domain, it won’t be long before we can expect to see him fighting zombies and chasing vampires. 

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