The Curious Case of Sherlock’s Copyright

It is an axiom of copyright law that no one may copyright an idea.

In a federal court ruling earlier this week, the Northern District of Illinois ruled that the bulk of Sir Arthur Canon Doyle’s Sherlock Holmes stories and character elements are not protected by copyright.

If you’re like me (and that’s often not a wise aspiration), you probably thought that these works became part of the public domain some time ago.  But it’s a bit more complicated than that.

sherlock holmes silhouette computingFirst, some background. Until relatively recently, American copyright works had expired 50 years after the death of their author.  This is one reason why Hollywood in general (and Disney in particular) finds old source material so attractive–no need to give royalties to the estate of Lewis Carroll for another Alice remake.

In 1998 the Copyright Term Extension Act (CTEA) changed, allowing up to 70 years after the death of an individual author.  For corporate authorship, it was extended to 120 years after creation or 95 years after publication, whichever came sooner.

As a recent L.A. Times article points out, these changes have caused many would-be public works to remain private works.  Among those books and songs that would have been public without CTEA: Atlas Shrugged and The Cat in the Hat, and the musical West Side Story.

But the 1998 CTEA law only applies to works created since 1923. Therein lies the rub.  The four novels and 56 short stories that comprise the Sherlock Holmes “canon” span this gap.  The majority of the stories were written prior to January 1, 1923–and are presumptively in the public domain–but the final 10 appeared in America after that year.  The copyright holder, which is a corporation set up by the family of the late Conan Doyle, argued that the development of the characters Holmes and Watson cannot be distinguished between the old and new stories; that if any part of the original character is protected, then the entire character ought to be considered protected.

The judge disagreed. He divided elements of the characters into “pre-1923 story elements” and “post-1923 story elements.”  It then examined whether the elements of the post-1923 stories were eligible for copyright.  It is an axiom of copyright law that no one may copyright an idea.  H.G. Wells’s The Time Machine has sentences, character names, and other unique qualities which may be copyrighted, but the mere idea of time travel cannot be copyrighted.  Ideas are simply too broad.

The court then examined the earlier and later story elements to distinguish them.  For example, if Holmes smoked a pipe and wore a deerstalker cap in the early stories, these traits (“increments of expression” in copyright lingo) are in the public domain and fair game for new works.  However, if Conan Doyle saved other key elements of the characters–such as Sherlock’s love of Angry Birds and stumbling into east London Karaoke bars to belt out the Black-Eyed Peas–for the later adventures, these would be protected.  The court determined that the later elements are not merely story or plot ideas, too broad to be copyrighted, but are valid increments of expression, protected under copyright.  Nevertheless, this decision does not remove the characters themselves from the public domain.

Illinois sits in the 7th Circuit with Indiana.  While not binding on Indiana now, the decision could become precedent if it is upheld by the 7th Circuit Court of Appeals in Chicago.