Barely Legally

Confessions of a Moot Court Bailiff

Clinging to the Past

By way of the always excellent Pirated Thoughts comes news that the Supreme Court of the United States has refused to hear the Sherlock Holmes case. Well, with all the questionable evidentiary issues, I’m more surprised it took this long for it to hit the high court, really. All right, so which one is this? The Blind Banker? The Lady in Pink? The Noodle Incident?

Actually, it’s about whether Sherlock Holmes is copyrighted or not:

Beginning in the 1880’s, [Sir Arthur Conan] Doyle authored and published four novels and 56 short stories about the exploits of detective Sherlock Holmes and his trusted sidekick, Dr. John H. Watson. When Leslie Klinger, an author and co-editor of a series of short stories of new and original stories in the Sherlock Holmes universe, sought to publish his book. The estate of Doyle soon came a’ knocking and stated Klinger must be licensed to use the characters and their likeness.

Now, I know what you’re thinking. “Dominic, the first Sherlock Holmes story appeared in the same year that earmuffs and phonograph were patented. That’s basically the Stone Age.”

Yes, but, via SCOTUS Blog, the stupid argument which birthed so many billable hours. As they wrote over the summer:

Doyle has been dead for eighty-four years, but because of extensions of copyright terms, ten of his fifty-six short stories continue to be protected from copying. All of the short stories and four novels were published between 1887 and 1927, but all of the collection except ten short stories have entered into the public domain as copyrights expired.

The Doyle estate, though, is pressing a quite unusual copyright theory. It contends that, since Doyle continued to develop the characters of Holmes and Watson throughout all of the stories, the characters themselves cannot be copied even for what Doyle wrote about them in the works that are now part of the public domain and thus ordinarily would be fair game for use by others.

You got that, right? The Doyle estate admits Sir Arthur started writing Sherlock stuff in 1887, but he kept writing about it later, and so copyright should extend backwards in time from the very last story all the way to the first story. Like an inverse tachyon pulse phased through the deflector dish. No, that sentence didn’t make any sense, and neither did the other one.

Doyle’s estate even tried to invent the idea of “rounded” and “flat” characters, Holmes and Watson being the former, which deserve to be protected backwards in time. It was… interesting.

Given the way Congress has been all too happy to retroactively extend copyright for dead people, (“to promote the useful arts and sciences,” don’t forget), I guess it was worth a shot. But Judge Richard Posner of the Seventh Circuit Court of Appeals had some choice words for shooting that particular theory down.

Lacking any ground known to American law for asserting post-expiration copyright protection of Holmes and Watson in pre-1923 stories and novels going back to 1887, the estate argues that creativity will be discouraged if we don’t allow such an extension.

If [Doyle] 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.

Of course this point has no application to the present case, Arthur Conan Doyle having died 84 years ago.

Read the whole opinion here. It’s Posner, so you know it’s enjoyable.