We have been following the rather swift progress through the courts of Klinger v. Conan Doyle Estate, a case which raises the fascinating question of when copyright protection on “franchise” literary characters who develop over a series of works, published over a period of many years, expires. Klinger, the editor of books containing original stories based on the Sherlock Holmes character and other elements of Arthur Conan Doyle’s original stories,  brought an action seeking a declaratory judgment that copyright protection had expired on a long list of Sherlock Holmes story elements which were now in the public domain, excusing him from any obligation to pay royalties to the estate. (See CEASE AND DESIST LETTERS FROM BEYOND THE GRAVE–CONAN DOYLE EDITION for a description of Klinger’s complaint and CONAN DOYLE ESTATE LOSES ROUND 1 for a summary of the district court opinion largely vindicating Klinger’s position.) This week the Seventh Circuit weighed in with an opinion affirming the district court, penned by Circuit Judge Richard Posner. As with any Posner opinion, even affirmances, this one adds original analysis well worth a closer look.

The case of Sherlock Holmes—including such other story elements 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–is complicated by the fact that the bulk of the Holmes canon was published before 1923 and is therefore in the public domain, while the final 10 short stories were published somewhat later and remain under copyright. Thus, the case raises the eternal question that bedevils judges, “where do you draw the line?” In this instance, where do you draw the line between still-copyrighted character traits and story elements and those in the public domain?

Judge Posner summarized the Estate’s position as follows:

copyright on a “complex” character in a story, such as Sherlock Holmes or Dr. Watson, whose full complexity is not revealed until a later story, remains under copyright until the later story falls into the public domain. The estate argues that the fact that early stories in which Holmes or Watson appeared are already in the public do-main does not permit their less than fully “complexified” characters in the early stories to be copied even though the stories themselves are in the public domain.

The Estate also distinguished between “rounded” characters that evolve over the course of the oeuvre, and “flat” characters that remain static. Characters like Holmes and Watson, it argued, were rounded and not fully developed until the final story in which they appeared, and therefore the copyright on the final presentation protected the character in its entirety.

Posner viewed this as, essentially, an argument for extending the copyright on the earlier works beyond the “limited times” required by Article I, section 8, clause 8 of the Constitution—the “Progress Clause”—and specified by the copyright statute. Posner could have ended his analysis right there, but he went on to consider the Estate’s contention that

 creativity will be discouraged if we don’t allow such an extension. It may take a long time for an author to perfect a character or other expressive element that first appeared in his early work. If he loses copyright on the original character, his incentive to improve the character in future work may be diminished because he’ll be competing with copiers, such as the authors whom Klinger wishes to anthologize.

Posner, however, pointed out that “extending copyright protection “is a two-edged sword from the standpoint of inducing creativity.” While it may increase the incentive to develop or “round out” existing characters, it would both reduce the incentive of subsequent authors to create derivative works and the incentive of the original author to create new characters. Posner went on to reject the Estate’s argument that no workable rule can be devised to separate the public domain elements of the early works from the protected elements of the later works, relying on the very concept of incremental originality that justifies copyright protection on the later works in the first instance:

That would be true only if the early and the late Holmes, and the early and the late Watson, were indistinguishable—and in that case there would be no incremental originality to justify copyright protection of the “rounded” characters (more precisely the features that makes them “rounder,” as distinct from the features they share with their earlier embodiments) in the later works.

As specific examples, Posner notes

Only in the late stories for example do we learn that Holmes’s attitude toward dogs has changed—he has grown to like them—and that Watson has been married twice. These additional features, being (we may assume) “original” in the generous sense that the word bears in copyright law, are protected by the unexpired copyrights on the late stories.

To me the least persuasive aspect of Posner’s opinion is the part which so far has been the most widely quoted, his suggestion that the Estate’s position raises “the spectre of perpetual, or at least nearly perpetual, copyright.” In the scheme of things—a scheme in which copyright subsists for the life of an author plus 70 years, or in certain circumstances (such as those applying to the later Holmes stories) 95 years from publication, which has shown to be, economically on a present value basis, virtually equivalent to perpetual copyright—the few additional years that the Estate’s argument would tack on to copyright protection is rather trivial. Of all people, Judge Posner, the founding father of law and economics, should understand this.