The Case of the Copyrighted Characters

Long before the days of Star Trek, Harry Potter, and Twilight fan fiction, people were writing their own stories featuring the world’s first consulting detective, Sherlock Holmes. In just the past few years, this most protean of icons has been reimagined as a steampunk action hero, a twenty-first century self-described high functioning sociopath, and – a New Yorker (though an immigrant).

One of the most famous fictional characters in the world, Sherlock Holmes was the creation of Arthur Conan Doyle. Nobody disputes that.

During his lifetime, and for years after his death, Conan Doyle and his descendants retained the right to profit from the good doctor’s intellectual labor. Nobody disputes that, either.

But copyright laws exist to strike a balance between the proprietary interests of the creator of intellectual property and the benefits to society of making such property freely available as part of the public domain. A recent lawsuit argues that Holmes and Watson have passed that line in the United States.

Lawyer and Sherlockian Leslie S. Klinger has filed suit in U.S. District Court against the estate of Arthur Conan Doyle. The suit seeks to have the court declare that the characters of Holmes and Watson are no longer protected by federal copyright laws. All but ten of Conan Doyle’s Holmes stories are now in the public domain in the U.S. But because ten late stories are still under copyright, the estate asserts continued proprietary interest in Holmes and claims that anyone seeking to use the character must first secure permission.

Klinger argues that Holmes, Watson, and other characters are sufficiently well established in the stories already in the public domain that they should now be available to writers who wish to create original works using them. He spells out the details of his action on the web site Free Sherlock!

Klinger is the editor of The New Annotated Sherlock Holmes and the author of numerous works on the Baker Street detective. His annotated version of “The Adventure of the Red Circle” appeared in the March/2008 issue of AHMM.

As an editor of a fiction magazine, I get inquiries from authors about this sort of thing frenquently. This case has the potential to be an education in the intricacies of copyright law.

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