Sherlock Holmes and the Public Domain: not so Elementary?

, New York Law Journal

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Robert Clarida and Robert J. Bernstein
Robert Clarida and Robert J. Bernstein

Seeking to avoid this result, Klinger contended that the post-1923 story elements were not susceptible to copyright protection because they are events, not characteristics, citing Scott v. WKJG, 376 F.2d 467, 469 (7th Cir. 1967) ("Copyright protection does not extend to ideas, plots, dramatic situations and events"). The Klinger court rejected this argument and held that the post-1923 story elements do not fit into any of the categories articulated by Scott but instead consist of a character (Watson's second wife), character trait (Watson's athleticism), and storyline (Holmes' retirement), all of which are copyrightable increments of expression. Therefore, to the extent that Klinger sought to use these post-1923 elements without consent, he could be held to infringe. The court concluded that "Klinger is entitled to use the Pre-1923 Story Elements" but "[t]he Post-1923 Story Elements are protected under copyright, and as a result neither Klinger nor the public are entitled to use them."5

Conclusion

As Klinger's anthologies appear to demonstrate, there is still a robust market for new adventures featuring Holmes and Watson. Unlike other pop-culture "fan fiction" subjects such as Star Trek or The Hunger Games, however, the Holmes canon contains copious public domain material that any would-be Holmes author or filmmaker can safely publish and commercialize without fear of legal repercussions. Going forward, such creators will need to avoid literary elements that first appeared in the Ten Stories, at least until these works too enter the public domain in 2022 or so, but this would not seem to present an insuperable hurdle for a motivated sequelist. Holmes fans may be enjoying Klinger's Christmas present for years to come.

Robert W. Clarida is a partner at Reitler, Kailas & Rosenblatt, and the author of the treatise 'Copyright Law Deskbook' (BNA). Robert J. Bernstein practices law in The Law Office of Robert J. Bernstein.

Endnotes:

1. No. 13 C 1226, 2013 U.S. Dist. LEXIS 180493 (N.D. Ill. 2013).

2. 870 F.2d 40, 50 (2d Cir. 1989).

3. No. 03 Civ. 7841, 2004 U.S. Dist. LEXIS 23015 (S.D.N.Y. 2004).

4. This standard is very similar to the "distinguishable variation" test in the Second Circuit under L. Batlin & Son v. Snyder, 536 F.2d 486 (2d Cir.) cert. den. 429 U.S. 857 (1976).

5. Klinger at *33-34.

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