Early this year, we reported on the filing of Klinger v. Conan Doyle Estate in the federal district court in Chicago. Leslie Klinger is the editor of a collection, called A Study in Sherlock, containing original stories based on the Sherlock Holmes character and other elements of Arthur Conan Doyle’s original stories. He has prepared a sequel entitled In the Company of Sherlock. The publisher of the first book acceded to demands of the Conan Doyle Estate that it take a license and pay a royalty, but the publisher of the sequel balked, and the book remains unpublished in legal limbo.
Klinger brought an action seeking a declaratory judgment that a long list of Sherlock Holmes story elements—including such characters as Professor Moriarity, Sherlock’s smarter brother Mycroft, his landlord Mrs. Hudson and the Baker Street Irregulars, Dr. Watson’s “thick neck and small moustache,” along with such Holmesian traits as his skills in chemistry, disguise, and maritial arts, his methods of reasoning, and his drug addiction—were in the public domain.
We can now report that on December 23 Klinger got his Christmas wish—a summary judgment declaring that virtually all important Sherlock Holmes story elements are free for public use—albeit with one proviso.
There was no dispute that of the total Sherlock Holmes canon of four novels and 56 short stories, all works except the final ten short stories, published after January 1, 1923, were in the public domain. The Estate argued, however, that certain elements first introduced in the public domain stories, most importantly the characters of Holmes and Watson, remained under copyright protection because they “continued to be developed” in the later stories that remained under copyright. The court, however, rejected this argument, ruling that only fresh “increments of expression” introduced in the later stories remained under copyright.
The court went on to give the Estate a small victory, rejecting Klinger’s argument that the story elements introduced in the final ten stories for which the Estate claimed continuing protection, such as Watson’s second marriage and Holmes’s retirement from his detective agency, did not constitute copyrightable increments of expression.
An appeal to the Seventh Circuit seems probable, but we should have a final answer well before the last of the Holmes stories enters the public domain in 2023.