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Wednesday, 2 October 2013

A “Sherlockian Civil War” in the US? Klinger v Conan Doyle Estate

Not an easy case: in- or out-of-copyright?
A few days ago the IPKat and The Blog reported on the copyright saga concerning Sherlock Holmes character. 

The IPKat has just received further updates on this story from Katfriends Tom Ohta and Aida Tohala (Bristows). 

Here's what Tom and Aida have to say:

A “Sherlockian Civil War” is how one blogger described the ongoing spat before the US courts between Sherlock Holmes enthusiast, author and attorney, Leslie S. Klinger, and the estate of Sir Arthur Conan Doyle. Earlier this week, a further round of court papers were filed by Mr Klinger in a dispute that raises interesting questions about the extent to which copyright protects literary characters such as Sherlock Holmes under US law.

Readers may recall that the dispute arose after the Conan Doyle Estate sought to impose a licence fee for the publication of a new collection of original stories by contemporary authors featuring various characters and other story elements from the Canon entitled, ‘In the Company of Sherlock Holmes’.

Ordinarily, characters are not protectable under US copyright law, but US courts have afforded copyright protection over fictional characters where they have been “sufficiently delineated”, essentially, requiring a character to have been developed with enough specificity so as to constitute protectable expression (see eg Warner Bros. Inc. v. Film Ventures Int'l and Nichols v. Universal Pictures). Thus, for instance, a Californian court found that the character of Rocky Balboa, as expressed across the four Rocky movies, was sufficiently delineated so as to warrant copyright protection (Anderson v. Stallone). In contrast, English law does not recognise characters within a work as constituting a separate category of copyright work. Instead, the English courts assess whether a substantial part of the copyright work (e.g. film, play, novel) has been misappropriated by the second work’s use of similar characters.

In this case, the Conan Doyle Estate argued that the creation of complex characters, such as Holmes and Watson, occurs across the entire Canon and the last ten stories (still in copyright) “contribute dramatically to their characters”. The Estate therefore rejected Mr Klinger’s suggestion that Sir Arthur created Holmes’ or Watson’s character “in a linear way”, such that the last ten copyrighted stories merely developed aspects of their characters at the end of their lives. This - it argued - contrasted to a “flat entertainment character created in the first story of a series” such as 1920s US sitcom Amos ‘n’ Andy. “A complex literary personality can no more be unravelled without disintegration than a human personality”, asserted the Estate. “At any given point in their fictional lives, the two men’s characters depend on the Ten Stories.”

In the court papers filed on Monday, Mr Klinger challenged the Estate’s claim that the characters of Holmes and Watson were not complete until the last ten stories were published:

It is a matter of simple logic that characters may be distinctly delineated for purposes of copyright infringement before all their stories have been told or character traits developed. Otherwise, characters in continuing series would never be protected by copyright law until the entire series was complete; even Mickey Mouse, whose character and countenance have changed significantly over the decades, would not be protected.”

Mr Klinger also raised the argument that if a ‘complex’ character is not complete until the final instalment is published, then the ‘incomplete’ version of the character which has been revealed up to that point is not protected by copyright such that he would be free to use the unprotected, incomplete versions of the characters not because the copyright had expired, but because it had never existed. Mr Klinger’s Reply focused on the question before the court – at what point in the writing and publishing of the Canon did Sir Arthur Conan Doyle achieve the ‘sufficiently delineated’ threshold for US copyright protection over the various characters?

This “Sherlockian Civil War” has caused much debate, particularly amongst devotees of Sherlock Holmes, and social media has taken up the cause, with #FreeSherlock gaining popularity on Twitter. 

The outcome of the case will no doubt be keenly followed by many.


Thanks Tom and Aida for this helpful analysis. Let's see what happens. Merpel notes that, not only is #FreeSherlock trending on Twitter, but there is also plenty of Sherlock wannabes there ...

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